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the WORDS of
JUSTICE
BRANDEIS
BY THE SAME AUTHOR:
A Rabbi Takes Stock
The Jew and the Universe
Crisis and Decision
The Golden Chain
Undefeated
Brandeis on Zionism
The Book of Booh
In the Beginning
the WORDS of
JUSTICE
BRANDEIS
L. D.
edited by SOLOMON GOLDMAN
with a Foreword by
JUSTICE WILLIAM O. DOUGLAS
HENRY SCHUMAN NEW YORK
Copyright 1953 by Henry Schuman, Inc.
Manufactured in The United States of America
by H.Wolff
to
DAVID JACKER
in admiration, gratitude, and deep affection
CONTENTS
FOREWORD, xiii
PREFACE, XV
JUSTICE BRANDEIS AMERICAN AND JEW, 1
THE WORDS OF JUSTICE BRANDEIS, 23
Abnormal and Privileged, 25
Absolute, 25
Absolute Power, 25
Abstract Thinking, 26
A Day's Work, 26
Agreement, 26
Amending the Constitution, 26
Amendment, 26
America, 26
American Democracy, 27
American Ideals, 27
Americanization, 29
American Jewish Community,
29
Americans, 30
American Standard of Living,
30
America's Fundamental Law,
30
America's Insistent Demand,
30
Angels and Devils, 30
Anti-Semitism and the Nazis,
30
Arbitration, 31
Argument of Force, 31
Arithmetic, 31
Art, 32
imt *
Artificial Legal Conviction, 32
Artists, 32
Averages, 32
Banker-Middleman, 32
Bankers' Ethics, 33
Bankers' Failure, 33
Bankers' Function, 34
Bankers 7 Power, 35
Betrayal of Our Great Herit-
age, 35
Better Than Peace, 36
Bible, 36
Big Business, 37
Bigness, 37
Blighting Influence of Journal-
istic Gossip, 39
Boldness, 40
Brain, 40
Brotherhood, 40
BusinessA Profession, 41
Business Success, 41
Calmness, 42
Capacity of Individual Man,
42
Centralization, 42
Challenge of Existing Law, 43
Change in a Democracy, 43
Character, 44
Character and Intelligence, 44
Child, 44
Chosen People, 44
Church and Democracy, 52
Cohen, Benjamin V., 52
Collective Bargaining, 52
Common People, 54
Competition, 55
Competition From Within, 57
Concentration, 57
Contents
Concrete Problems, 57
Conservation, 57
Conservatism, 58
Constitution, 58
Control and Cooperation, 58
Cooperative Movement, 58
Corporation Lawyer, 59
Courts and the People, 59
Cutthroat Competition, 59
Dangers to Democracy, 59
Deception, 59
Delicate Operation, 60
Demand, 60
Dembitz, Lewis N., 60
Democracy, 61
Democracy and Aristocracy,
62
Democratic Ideals, 62
Democratic Methods, 63
Depreciation, 63
Despotism, 63
Differentiation Not Uniform-
ity, 63
Douglas, William O., 64
Duties, 64
Duty, 64
Duty to the Community, 64
Early New Englanders, 64
Educated Jew, 64
Education, 65
Educational Endowments, 65
Educational Standard, 65
Education on Electorate, 65
Efficiency, 66
Efficiency and Social Ideals, 67
Efficiency's Test, 68
Elimination of Waste, 68
Emerson, 68
Contents
Employer and Employee, 68
Employers and Unions, 70
England, 71
Enlightened Unselfishness, 72
E Pluribus Unum, 72
Equality of Opportunity, 73
Excesses, 73
Excesses of Capital, 73
Existing Institutions, 74
Experimentation, 74
Facts, 77
Failure of Life Insurance Com-
panies, 78
Falsification of Books, 78
Fear, Repression, Hate, 79
Financial Dependence, 79
Financial Independence, 80
Freedom of Speech, 80
Function of Speech, 87
God's Presence, 87
God's Purpose, 88
Good Bargain, 88
Government as Lawbreaker, 88
Government Control, 89
Government Employees, 89
Government Intrusion, 89
Greatest Danger, 90
Greatest Economic Menace,
90
Greatest Good of Greatest
Number, 91
Greatest Menace to Freedom,
91
Greatest Problem, 91
Great Physicians, 91
Half Free and Half Slave, 91
Hamilton, Alexander, 92
Harmony in National Life, 92
Hebrew Language, 92
Herzl, Theodor, 93
History, 93
Home Life, 93
How Human Beings Improve,
93
Human Nature, 93
Human Truth, 94
Immortality of the Soul, 94
Indifference, 95
Individuality of Peoples, 95
Individual Suffering, 97
Industrial Absolutism, 97
Industrial Democracy, 97
Industrial Democracy and
Thinking, 99
Industrial Injustice, 101
Industrial Liberty, 101
Intelligent Self-Interest, 103
Interlocking Directorates, 103
Investor's Servility, 104
Irregularity of Employment,
105
Jew Definition of Term, 105
Jewish Attributes, 106
Jewish Festivals, 106
Jewish Heritage, 106
Jewish Individuality, 107
Jewish Intellectual Capacity,
107
Jewish "Peculiarities," 108
Jewish People Its Preserva-
tion, 108
Jewish Persecution, 109
Jewish Problem, 109
Jewish Spirit and America, 110
Jewish Survival, 110
Jews and Democracy, 111
Jews Today, 112
Joiners, 113
Joseph, 113
Judges, 113
Justice, 114
Labor's Share, 114
Law and Life, 115
Law and Public Opinion, 115
Law and the Will of the Peo-
ple, 115
Law's Function, 116
Laws Not Man, 116
Lawyers' Education, 117
Lawyers' Knowledge, 118
Lawyers' Opportunity, 119
Lawyers' Special Obligation,
120
Lawyers' Training, 120
Legal Profession, 121
Legal Science Deaf and
Blind, 121
Leisure, 122
Liberalism and Anti-Jewish
Prejudice, 123
Liberation of Smaller Peoples,
123
Liberty, 123
Liberty's Greatest Danger, 125
Liberty Through Law, 125
Library, 125
Liquor, 125
Living Law, 125
Logic of Realities, 125
Long Hours, 126
Low Wages, 127
Loyalty, 127
McElwain, Wm. H., 127
Maccabean Struggle, 128
Contents
Machinery, 128
Main Factor in Betterment,
128
Man, 128
Man's Work, 128
Massachusetts' Task, 128
Messiah, 128
Minimum Wage, 1 30
Miracles, 130
Money, 130
Money-Making and Service,
130
Monopoly, 131
Monopoly and Efficiency, 139
Motives and Results, 139
National Individuality, 139
Nationality, 140
Nation and Nationality, 140
Nature of Law, 141
Neutrality, 141
New Demands for Justice, 141
New Freedom, 142
Noblesse Oblige, 142
One Life to Live, 143
One Master Only, 143
Open Opportunity, 143
Organization, 144
Our New Peonage, 144
Palestine, 145
Paramount Public Need, 145
Parentage, 145
Past, 145
Past Losses, 145
Path to Bankruptcy, 145
People and Raw Material, 146
People and Rich, 146
People's Own Gold, 146
Politician, 147
Contents
Popular Opinion, 147
Possibilities of Human De-
velopment, 147
Practical Men, 148
Preparedness, 148
Price Control, 148
Private Citizen, 148
Production, 149
Products of the Mind, 149
Profit Sharing, 149
Progress, 149
Proper Conferences, 149
Property, 150
Propriety, 151
Public Interests, 151
Publicity, 151
Public Opinion, 151
Public Service, 151
Punctuality, 152
Puritans, 152
Quality and Spiritual Value,
152
Radicals and Conservatives,
153
Rate-Making, 153
Reading, 154
'Regulated Competition, 154
Regulation, 155
Remedial Institutions, 155
Resettlement of Palestine, 156
Responsibility, 156
Resurrection, 156
Revelation, 157
Revolutionary Change, 159
Right to Privacy, 159
Risks, 159
Roosevelt, Theodore and Wil-
son, Woodrow, 159
Rule of Law, 159
Sabbath, 160
Savings Bank Insurance, 160
Scientific Management, 160
Scientists and Theologians, 162
Securities, 162
Separation of Governmental
Powers, 163
Serious Controversies, 163
Service vs. Charity, 163
Sherman Law, 163
Short Cuts, 164
Short Workday, 165
Sinful Waste, 165
Skilled and Unskilled Labor,
165
Small Groups, 166
Small Stockholders, 166
Social Inventions, 167
Socialism, 167
Social Problems and Scientific
Inventions, 168
Solving the Jewish Problem,
168
Soundness of Judgment, 168
Specialization, 169
Strikes, 169
Struggle, 169
Success Built on Failure, 170
Supply and Demand, 170
Teachers, 170
Testing a Fact, 171
Thinking, 171
Transportation, 171
Trial and Error, 172
Triviality, 172
Trustee of History, 172
Uncharted Seas, 172
XI t
Unemployment, 172
Unionism, 173
Union Leaders, 173
Unions, 173
United States Steel Corpora-
tion, 175
United States Supreme Court,
177
Unity, 178
University, 179
Unrest, 179
Unrestricted Power, 180
BIOGRAPHICAL NOTES, 187
Contents
Unwieldy Committees, 181
Value, 181
Vital and Beyond Price, 181
War, 181
War and Its Aftermath, 182
Weizmann, Chaim, 182
White Paper on Palestine, 182
Wire Tapping, 182
Women, 183
Women Overwork, 183
Zionism, 183
Zionism and Patriotism, 184
FOREWORD
There are some who identify themselves with a cause and
then use it to advance their own interests. There are others
who lose themselves in the cause, staking their reputations,
their fortunes, and their lives that it may live. Government,
business, labor, the professions, science, literature and the
arts have had men and women of both types. But the person
who has made some cause greater than himself is still so rare
as to deserve a special tribute.
There was a letter written to the late George W. Norris,
reminding him that if he cast his vote for a certain measure
before the Senate, he would never represent the people of
Nebraska again. His reply was the measure of the man-
that the important thing was not his own political survival
but the survival of the idea embodied in the controversial -
measure.
That attitude also marked the man Brandeis. His obses-
sion was with causes Zionism, honesty in government,
x i i i
xii? Justice 'Brandeis
integrity in business and finance, the curse of bigness in
our economic and political life. Much of his advocacy ex-
posed him to scorn and to the bitterness of powerful opposi-
tion. The enemies he made almost defeated his confirma-
tion as Associate Justice of the Supreme Court. But, know-
ing Brandeis, I know there was no price he would not
have paid for his convictions. Causes were not lost in the
man; he was dedicated to his causes.
That is why the words he spoke, the advice he gave, the
positions he defended will always be worth review and
study. Some of his phrases could have been turned into
more colorful literature by a Holmes. But no one could
have improved on the power of his logic. And the fire
of his convictions transformed simple words into the state-
ment of fighting faiths.
Rabbi Solomon Goldman has done a scholarly job in
culling out from voluminous material many enduring ideas
with which Brandeis was associated and numerous state-
ments of a philosophy of life adaptable to the vicissitudes
of a changing century. These utterances of Brandeis will
stir warm and vibrant memories in all those who knew the
man. To those who never had that privilege this collection
will give some clues to his greatness.
William O. Douglas
WASHINGTON, D.C.
MAY 17, 1952.
PREFACE
Between July 1938 and September 1941 I had the privilege
of seeing Justice Brandeis as many as forty-five times. He
would receive me as a rule at eight in the morning and the
conversation would last a full hour. I also attended, during
that period, several conferences at the Brandeis home, and
was present at the only meeting which took place between
the Justice and the late Dr, Chaim Weizmann after the
breach between the two in 1920. Prior to 1938 I listened to
Mr. Brandeis at several Zionist meetings, spent two hours in
his company July 4, 1921, at a Pittsburgh hotel, as a mem-
ber of the committee that formulated the resolution call-
ing into existence the Palestine Development Council, and
talked with him in Washington and Chatham in 1924,
1926, 1928, 1932, 1936, and 1937.
The first time I saw and heard Mr. Brandeis on a public
platform was in 1913. When I heard him again in 1914 for
the second time I was so moved by the very conciseness of
x i; J * the words of
his remarks that I went rummaging in New York's libraries
for more of his words. My search was soon rewarded. For
it led me to his then recently published BusinessA
Profession. The reading of this book was a new experience
for me. For it opened up worlds of which I had as little
knowledge as of the Milky Way. Not that I had not known
that they were there, but I thought of them as curios.
Business A Profession made me realize to what extent I
was implicated in those new worlds.
From that time on I read everything written by or about
Mr. Brandeis that did not escape my attention and on
which I could lay my hands. Following an early reading
habit, I marked in the books, pamphlets, and articles I was
reading passages coming under the following four cate-
gories: general ideas, whether original in essence or only in
form and application; elucidations and affirmations of
American principles; similarities between Americanism and
Judaism; and echoes from the Bible, whether of its content
or style. In 1933 I read avidly Professor Alpheus Thomas
Mason's Brandeis: Lawyer and Judge in the Modern State.
From then on I looked forward eagerly to whatever came
from the pen of that most brilliant and consecrated of the
biographers of Justice Brandeis.
By the time I began to see the Justice frequently I had
accumulated an abundance of Brandeisiana, which was
soon supplemented by the views he expressed in the con-
versations I had with him. The desire to make use of all
this material was irrepressible. Unfortunately, I never got
to write more than a few pieces, three of which appeared
in The New Palestine and one each in The Jewish Frontier
and the Israeli Gilyonot. For Time, ever niggardly with
modern clergymen, had in store for me other plans and
trials and a freak accident that have imposed restrictions
on my literary interests.
May the reader, if there should ever be one to glance at
justice TZrandeis xvii
this Preface, forgive me for writing in so personal a vein. I
do so both to explain what it was that impelled me to com-
pile this little volume and to apologize for publishing it in
its present state of incompleteness and imperfection. Let
him bear with me. I come only, belatedly, to pay homage
to the memory of one of the greatest men of our times for
having afforded me the privilege of sitting at his feet.
Now as to the sources to which I am indebted. Mr.
Brandeis, it should be noted, was not a professional writer
or scholar. That is, his primary aim was not to produce
books. He was one of those rare social philosophers who
was far more interested in the day-to-day improvement of
the present than in envisaging Utopian futures. Further-
more, the writing of a continuous book, setting forth a
philosophical system, he most probably regarded as too
"big" and presumptuous an undertaking for a mortal man.
He deemed it sufficient to treat of one specific, concrete
problem at a time, and he wrote and spoke only to help in
the solution of the problem before him. Consequently his
"literary" activity took the form of addresses, lectures,
articles, pamphlets, discussions, statements, and cross-ex-
aminations before a variety of government and citizens'
commissions, interviews, briefs, opinions, and letters.
Of this material Small, Maynard & Company published,
in 1914 and again in 1925, under Mr. Brandeis' name
Business A Profession. Both editions contain a chapter on
Mr. Brandeis by Ernest Poole which was first published in
the American Magazine in February, 1911. The 1925 edi-
tion contains Supplementary Notes by Mr. Justice Felix
Frankfurter. (Professor Mason does not mention this sec-
ond edition but instead an edition of 1933? published by
Hale, Cushman & Flint, which edition I have not seen.)
Also in 1914 F. A. Stokes & Company issued, and in 1932
the National Home Library Foundation reissued, also under
the name of the Justice, and with a Preface by Norman
xv ui the words of
Hapgood, Other People's Money and How the Bankers
Use It Two earlier books bearing the Justice's name were
privately printed in 1894-96 and 1907. (These books I
have never seen, and know only from references to them in
Professor Mason's works on Justice Brandeis.)
In addition to these two books there further appeared
selections and extracts from the Justice's papers in the
following works:
De Haas, Jacob. Louis D. Brandeis: A Biographical
Sketch. Bloch Publishing Co., New York, 1929. The
volume contains the "full text of his [Brandeis'] Ad-
dresses [on Zionism]" delivered from 1912 to 1924.
Flexner, Bernard. Mr. Justice Brandeis and the Uni-
versity of Louisville. Privately printed by the University
of Louisville in 1938.
Fraenkel, Osmond K, Editor. The Curse of Big-
ness. The Viking Press, New York, 1934.
Goldman, Solomon, Editor. Brandeis on Zionism.
Prepared for publication by Abraham G. Duker and
Carl Alpert and published by the Zionist Organiza-
tion of America with an Introductory Note by Judge
Louis E. Levinthal and a Foreword by Justice Frank-
furter. Washington, D.C., 1942.
Lief, Alfred, Editor. The Social and Economic
Views of Mr. Justice Brandeis. Published by the
Vanguard Press with a Foreword by Professor Charles
A. Beard. New York, 1934. (Mr. Lief's The Brandeis
Guide to the Modern World, published by Little.,
Brown & Co., Boston, 1941, did not come to my at-
tention until after this volume was completed. While
Justice "Brandeis *
our compilations are unavoidably similar in some re-
spects, they diverge sufficiently not to render, I hope,
my effort superfluous.)
Lives of and Tributes to the Justice and expositions of
his views that I have read include among others the fol-
lowing:
Analyticus [James Waterman Wise]. Jews Are Like
That! Brentano's, New York, 1928.
De Haas. Listed above.
Frankfurter, Felix, Editor. Mr. Justice Brandeis.
Yale University Press, with an Introduction by Justice
Holmes. New Haven, 1932.
Goodhart, Arthur L. Five Jewish Lawyers of the
Common Law. Oxford University Press, London-
New York-Toronto, 1949.
Jackson, Justice Robert H. "Louis D. Brandeis."
The Jewish Frontier, July, 1943.
Levinthal, Louis E. ''Louis Dembitz Brandeis."
American Jewish Year Boofe, 1942-43.
Lief, Alfred. Brandeis: The Personal History of an
American Ideal Stackpole Sons, New York-Harris-
burg, Pa., 1936.
Mason, Alpheus Thomas. Brandeis: Lawyer and
Judge in the Modern State. Princeton University Press,
Princeton, 1933. Republished in 1936 with a Foreword
by Norman Hapgood by the National Home Library
xx . the words of
Foundation under the abbreviated title Brandeis and
the Modern State.
The Brandeis Way: A Case Study in the Work-
ings of Democracy. Princeton University Press, Prince-
ton, 1938.
Bureaucracy Convicts Itself: The Ballinger-Pinchot
Controversy of 1910. The Viking Press, New York,
1941.
Brandeis: A Free Man's Life. The Viking Press,
New York, 1946.
Harvard Theological Review, December, 1941,
Opinion, A Journal of Jewish Life and Letters.
November, 1941.
Proceedings of the Bar of the Supreme Court of the
United States and Meeting of the Court in Memory
of Associate Justice Louis D. Brandeis, December 21,
1942. Published in Washington, 1942.
The New Palestine, November, 1941.
All of the above Lives contain copious extracts from the
oral and written words of Justice Brandeis. All of them put
me under obligation, more particularly so Professor Mason
and his A Free Man's Life, in which he gives numerous
quotations from the Justice's unpublished letters.
I am indebted to the Justice himself for the material to
be found in this volume under the following headings:
Abstract Thinking, A Day's Work, Amendment, American
Jewish Community, Angels and Devils, Anti-Semitism and
the Nazis, Bible, Chosen People, Benjamin V. Cohen,
William O. Douglas, God's Presence, God's Purpose, His-
tory, Immortality of the Soul, Jewish Festivals, Joiners,
"Justice 'Brandeis
Messiah, Miracles, Neutrality, Practical Men, Punctuality,
Radicals and Conservatives, Resurrection, Revelation,
Theodore Roosevelt and Woodrow Wilson, Sabbath,
Scientists and Theologians, Specialization, Unwieldy Com-
mittees, White Paper on Palestine, and Zionism. Ever so
often during my visits to the Brandeis home, when the busi-
ness that brought me there was at an end and the hour the
Justice put at my disposal had not yet run out, he would
allow me to draw him into a discussion of various Jewish and
religious problems that I knew he had not dealt with else-
where. I never took notes in his presence but made it a
practice to record what he had said at the earliest possible
opportunity. I am confident that I have reproduced his views
faithfully, and perhaps also his language if my memory has
not played me false.
The piece entitled American and Jew immediately fol-
lowing consists of excerpts from articles I previously pub-
lished and of which I have made mention above.
It remains only for me to express my deep gratitude to
the ever faithful and competent Mrs. Henry Baum for
preparing the manuscript.
Solomon Goldman
VERNON TOWNSHIP
FEBRUARY 17, 1952
PART ONE
JUSTICE BRANDEIS
AMERICAN AND JEW
Those who enjoyed the privilege of seeing Justice Brandeis
at close range could not fail to be struck by the
spontaneous, contagious optimism of the man. It was not
a mood; it was not stimulated by the urgency of causes
or evoked by the despair of their advocates. His optimism
flowed from the inner being of the man.
I was never more impressed with it than when, in 1938,
I came to the Brandeis home with one of the country's
eminent citizens, a religious leader of high repute, Mr.
Brandeis' junior by several years. The man leaned heavily
on a cane. His old age trod falteringly. He relaxed into his
chair hopelessly, and soon began to expostulate on the evils
of the times and to moan in sheer helplessness against the
dark impasse of our civilization.
"I cannot agree with you/' interjected Justice Brandeis,
and the words sounded natural "I cannot agree with you.
We are moving on. There is much to be done, of course, but
* 3
4 the words of
I am very optimistic. What we need . . ." Here the Justice
spoke concisely, logically, almost mathematically, of what
might be done in the United States and elsewhere to
fashion the shape of things to come. I thought of the
tribute paid him on the occasion of his seventy-fifth birth-
day by the man who knew him better than most men.
Justice Holmes then wrote: ''In the moments of discourage-
ment that we all pass through, he always has had the happy
word that lifts up one's heart. ..."
*
There was in Justice Brandeis that elusive something
which set him apart, which made men hold their breath
when in his presence. For here was a realist, ruthless arith-
metician, stubborn analyst, and scientific materialist who
dealt all his life with business, money, unions, trusts, and
monopolies, and who, in all his adult life, had never come
under the direct influence of religion, who may perhaps be
best described as a saint. Here was a Jew who was reared
with little knowledge of his people, who rarely felt the sting
of anti-Semitism, who, as a youth, was accepted by the best
families of blue-blooded Boston, who yet became the most
optimistic and enthusiastic Zionist on this side of the
Atlantic. Somewhere in the unriddling of this paradox will
be found the essence of Mr. Brandeis' being, the quality
of his personality.
*
The passion for freedom, some of Mr. Brandeis' biog-
raphers suggest, is in the Brandeis blood. Unfortunately,
they limit it to the immediate family. They record the fact
that his maternal grandfather participated in the Polish
uprising of 1830 and that his father and uncle, Lewis Dem-
bitz, though Southerners, were on the side of the Union.
The biographers have forgotten a verse in Leviticus reading
"And ye shall proclaim liberty unto all the inhabitants
Justice 'Brandeis -5
thereof." They have overlooked numerous chapters in
Isaiah and the Psalms, as well as the whole of the prolonged
and glorious struggle for freedom of conscience of the
people from which Mr. Brandeis sprang. It is not amiss to
point out, when speaking of Mr. Brandeis, that the one
little people in antiquity that bled for its freedom with aban-
don and for two centuries fought undaunted one of the
most powerful military machines the world had ever known,
was the Jewish people. Statues of Roman emperors, symbol
of Roman superstition, autocracy and dictatorship, were
worshiped the world over, but not in Judea.
Though the home of young Brandeis' parents had lost
contact with the Jewish world, it was not wanting in echoes
and reminiscences of Jewish tragedy, grandeur, and aspira-
tion. Long before the Justice, members of his family
dreamed Messianic dreams and envisioned prophetic
Utopias. There were Brandeises who had been martyred
for the faith and Dembitzes who had followed the dead-end
trails blazed by Sabbatai Zevi and Jacob Frank. Young
Brandeis listened with rapt excitement to the wondrous
legends of Rabbi Loewe, a distant ancestor of the family,
and tales of grief, hope, and disillusionment which his
Uncle Lewis would tell He did not understand all he
heard. The mise en scene was strange, the figures exotic, the
action mysterious, but there remained in the subconscious
vague recollections of Jews anxious for freedom and wait-
ing for a Messiah. It is not improbable that these recollec-
tions occasionally streamed into the consciousness of the
maturing Brandeis.
Mr. Brandeis 7 mother, daughter of a Polish rebel, and
descendant of men who preserved their dignity and in-
dividuality against the cruelty and violence of princes and
counts, carried food and coffee to an encampment of
6 the words of
Northern soldiers. That she took young Louis with her
was only in consonance with a tradition bidding Jewish
parents habituate their young in the practice of mitzvot,
"good deeds/' 'Train up a child in the way he should go:
and when he is old he will not depart from it."
The mother gave the boy who trudged along at her side
a good training in the mitzvah and value of freedom. Often
Louis asked numerous questions: What were the soldiers
doing at the encampment? What were they fighting for?
Why did people want slaves? Why were some people's
skins black? Did black skins protect people against suffer-
ing pain? Could a black skin bleed? Did being black out-
side also mean being black on the inside? Could a black boy
learn to read and write? Does a black boy love his mother?
Do black boys like to play? Why did you, Mama and
Papa and Uncle Lewis Dembitz, leave Europe and come
here? Were there no houses there? What was Grandpa
like? I wonder whether anybody brought him coffee and
food when he was a soldier.
Young Louis was stimulated as he tried to understand
the answers that came from the patient, kind lips of his
mother. The tall, slender lad sometimes lingered behind
meditating and sometimes rushed ahead impatiently. He
walked, mused, and whistled as if his young heart and mind
were unable to contain all that his mother had told him, as
if the future people's attorney was chafing to do something
about it all. 1
It was good he was whistling, for this whistling saved
him for the great struggle for freedom and democracy to
which his life was to be dedicated. When he was but a youth,
1 This account of mother and son is not imaginary. That the boy
Louis occasionally accompanied his mother on her hazardous
missions I learned from Mrs. Brandeis; that the Justice was moved
by this account of his mother and himself, when he first read it in
The New Palestine, I heard from one of his cousins in Washington.
Justice 'Brandeis 7
his parents sent him to Dresden, Germany, to con-
tinue his education there. (Americans for a long time-
even the liberty-loving "Forty-Eighters" deferred to Ger-
many in matters educational,) One evening young Bran-
deis, while a student in a Dresden school, forgot the key
to his room, and upon his return to the dormitory, whistled
to arouse his roommate. On the morrow he was severely
disciplined. Mr. Brandeis informed his parents that he had
had enough of Kultur. 'This made me sick/' he reported
many years later. "In Kentucky you could whistle. . . ."
*
His native gifts, his uncanny grasp of figures, his easy
penetration into the intricacies of big business, his unflag-
ging capacity for work, his meticulous orderliness, his
magnetic personality, brought him a large and lucrative
clientele. The wealthiest corporations, the most affluent
citizens, sought as their lawyer this tall Lincolnesque
Kentuckian who was sure to win their cases. After a
decade or more, Mr. Brandeis was confronted with the need
of making a difficult decision. He was coming into wealth.
He was moving in the circles of the mighty. He was a
welcome guest in the most elegant parlors, where affluence
and affability were the most prized of virtues. He saw him-
self drawn into a circle where desire was fanned and the
spirit restrained, license encouraged and liberty diluted.
Things were preferred to ideas, money to men, and power
to character. Mr. Brandeis discovered that it was embar-
rassing to whistle. There was no Junker Schutzmann to
stop or punish him, but it was just not being done in the
elegant parlors of Boston.
He was ill at ease. There were the wistful tales of mother
on those lonely marches to the encampment of soldiers;
there were the challenging utterances of the aged Emerson,
whom he had heard as a student. There was the Puritan
8* the words of
heritage, there was the intimate knowledge of the Consti-
tution, of the Declaration of Independence, and there were
some vague recollections of stories Uncle Dembitz had told
about the Maccabees. And Mr. Brandeis decided: "I have
only one life to live and it is short enough. Why waste it
on things that I don't want most? And I don't want money
or property most. I want to be free. It is not only tyrants
who enslave men; property, money and things can become
the implacable foes and thieves of freedom. Freedom sits
better with a spare diet than with fashion/' Perhaps young
Brandeis had heard the adage from the traditional service
in which Uncle Dembitz was so expert Marbeh nechasim,
marbeh deagah, "Increase possessions, increase worry."
*
Mr. Brandeis had made his decisionhe was to be free.
But free to what end? Was he to retire to the solitude of
his own study and watch society drift to chaos? Was he
to escape to Tarshish and leave Nineveh to perish because of
its iniquities? "What shall it profit a man if he save him-
self and see the whole world go lost?" Noah in Heaven, so
the Midrash weaves a fancy tale, regales the righteous with
accounts of his exploits in the building of the Ark and how
he escaped from the deluge that overwhelmed his con-
temporaries. "Little merit, old Noah," Moses frowns. "You
saved yourself how about your generation?"
Mr. Brandeis changed the nature of his practice, re-
stricted his manner of living, only to help his fellow-men.
*
The American adventure was not intended merely to pro-
vide fortunes for the few. It was meant to bring liberty and
happiness to the many. We were not exploiting the conti-
nent for the purpose of streaming it with rails and silhouet-
ting it with skyscrapers. The Founding Fathers wanted to
build men. What good is rapid material development if it
Justice 'Brandeis -9
leads to the stultifying of mind and soul? What good is the
vote in the hands of hungry, ignorant, abject, timid crea-
tures? What good is citizenship, if it means meager oppor-
tunity for the child and no security for the old?
When Mr. Brandeis went out to his brethren toward the
end of the last century, he saw conditions that appalled
and saddened him. He could not reconcile the intent of
the Constitution and the Declaration of Independence, and
the purpose of the heroic struggle of the country's pioneers,
with what his eyes beheld. On the one side, unlimited
wealth; on the other, economic slavery that was crushing
the very desire for freedom. What was the advantage of
American democracy?
*
Mr. Brandeis soon realized that political liberty was not
enough. The Fathers had only won a major conflict; they
had not won the war. That was left to posterity. "We must
fight/' Mr. Brandeis wrote, "for economic and industrial
freedom even as they had fought for political freedom,
for in a machine age, in a complex industrial society it is
far more indispensable even than political liberty." And
as the "people's attorney/' Mr. Brandeis continued the war
of the Fathers. Our younger generation, that hears only of
the recluse Supreme Court Justice, so proverbially wort-
karg, cannot possibly visualize the Brandeis of forty or
forty-five years ago, the flaming spirit, the undaunted re-
former, employing the language of the prophet instead of
that of the jurist. Mr. Justice Holmes remembered him as
having that "crusading spirit, declaiming like one of those
upward and onward fellows.' 7 Mr. Brandeis was merciless
in his attack on the control exercised by investment bankers
over railroads, public service industry, banks, life insurance,
and trust companies. He pointed to the increasing number
of interlocking directorates as the root of many evils. "It
offends/' he said, "laws human and divine."
40* the words of
Mr. Brandeis stood no more in awe of wealth than did
Amos of Tekoa, and spoke with as little restraint as did
Micah of Moreshet. There was prophetic tradition back of
him and the fire of prophecy inside him. In his preface to
the first volume of his History of the Jewish People, Renan
writes: "In the realm of the intellectual and moral, Greece
showed one deficiency but it was considerable. Greece
despised the humble and felt no need for a god of justice.
Its philosophers were dreaming of the immortality of the
soul but were tolerant of the evils of this world. . . . The
fervent genius of a small tribe established in a remote
corner of Syria seemed to have come into the world to
make up for this defect in the Hellenic character. Israel
could never be satisfied to see the world badly governed
under the government of Him whom they knew to be just.
Its sages experienced a paroxysm of wrath in the presence
of the abuses in which the world abounds. 'A wicked man
dying old, rich and in peace, sent a twitch of pain and
anger to their hearts/ " Poverty in the midst of plenty,
economic slavery in a land with a democratic heritage, sent
a twinge of pain and anger to the heart of Louis D. Bran-
deis. He was saddened when he reflected that the progress
of science, the growth of invention, the development of
industry, were not making for more happiness or freedom.
"We are generating new forces without regard to cor-
responding controls. These forces are crushing the very
spirit of freedom. There is frightful human waste. American
democracy is being betrayed/' Something was happening
that was converting all the blessings of science and in-
dustry into a curse.
Mr. Brandeis drank deep from the fountain of liberty.
He studied and mused long over the ideals of those who
fashioned the republic. "How can we preserve our institu-
Justice 'Brandeis i i
tions and our ideals?" he asked, and even as Hillel or
Rabbi Akiba, he answered, "Through the law." So he
searched the law of the land and found that the freedom
and opportunity of the individual were its highest promise.
He was further instructed that the best laws were not
"those by which men become more prosperous, but those
by which they become most virtuous in character and best
fitted for citizenship/ 7 Mr. Brandeis concluded that the
great achievement of the English-speaking people is the at-
tainment of liberty through the law. Abundant life, a
Pharisee had said, was the purpose of the law. And a
younger colleague added "The law aims to refine man."
#
Systems and laws can change far more rapidly than
human beings. Means of transportation can be outmoded
more rapidly than habits of life. It takes more wisdom to
build a new heart than to invent a new radio. Science has
made progress in the things man uses. Science, religion,
philosophy, and art have effected little change in the things
by which men live. Progress depends on knowledge, wis-
dom, discipline, on laws, not only the laws man makes but
the laws men obey. "Progress," Justice Brandeis said, "was
slow. It required groping, experimentation. Therefore,
knowledge was necessary, and therefore nothing happened
that could wholly shake [my] faith."
*
Anti-Semitism obscured the grandeur of Zionism and, as
is the case with all ideals, its essence was tarnished by the
exigencies of fulfillment. Assimilationists and visionaries
saw Zionism either as a movement of escape or as an extra
encumbrance on the road to universalisrn. Idealists despised
it because of its political entanglements. Justice Brandeis
came to it because all his life he had been an uncompromis-
ing realist. He saw the world as it is, which means that he
4 2 the words of
examined, in any given situation, all of the facts insofar as
it was humanly possible to do so. The jumping board for
his intellectual efforts was not a formula or postulate but a
set of facts. He never theorized and rarely gave utterance
to an abstract principle or cosmic generalization. It was not
due, as some would want us to believe, to an absence of
faith or deficiency of style. Justice Brandeis' life's work is
incomprehensible without an absorbing faith in definite
principles and his "gift of happy phrasing was not incom-
parable to Holmes'/' If Brandeis did not indulge in grandi-
ose, philosophic statements about the universe, it was be-
cause, in his opinion, every such statement would have
had to be based on all of the facts about the universe.
Experience had taught him that it required endless toil and
time to gather the data relative to the simplest human prob-
lem, let alone the cosmic. His Zionism consequently did
not derive from theory but from the Jewish people.
What were the facts respecting Zionism which this
realist could not possibly dismiss once they had come to
his attention? The first discovery Brandeis made was the
Jewish people. "It is of the nature of our law," he had said,
"that it has not dealt with man in general, but with him in
relationships." A Jew, too, he came to understand, had to
be dealt with in such terms. These relationships were not
only economic or political in character, but also social,
psychic, hereditary. It was not likely that in the real world
any man could be found suspended in isolation, after the
manner of Melchizedek, without father or mother, without
beginning or end. The individual, to be properly understood
in all of his relations, had to be seen also as the confluent
sum of the consciousness of, or, in the words of Dewey, as
nature's experiment with the qualities of the group. Brandeis
was persuaded by the "logic of realities" that what was true
of all human beings was most probably applicable to Jews.
Jews, too, he decided, belonged to a group or people.
Justice "Brandeis 43
Now, it is the nature of a fact to be so obvious and simple
that only the genius can observe it, grasp it and hold on to
it in its obviousness and simplicity. Mediocre minds tend
either to distort it or overlay it with fiction or lose it alto-
gether. What, for example, is more obvious than the exist-
ence of millions of men, women and children over the face
of the earth to whom the myriad of millions of their fellow-
men refer as Jews. The reference is ever immediate and
direct and not the result of effort or inquiry. It is not dis-
carded even when the discovery is made that the person
designated as a Jew is without any religious faith or is a
member of a Christian Church. Normally, that would seem
to constitute ample proof of the existence of a Jewish folk
or people. And yet it is amazing how many practical men,
bankers, industrialists, merchants, and not a few philos-
ophers and rabbis managed to miss the point. It required,
among American Jews, a Brandeis to recognize it.
It was the recognition of this simple but ineluctable fact
that led Justice Brandeis to Zionism. Genius that he was,
he appreciated that it was no mean discovery. When later
he read Herzl, he concluded that the major contribution
of the father of political Zionism to the understanding of
the Jewish problem was "the recognition of the fundamental
fact that the Jews are a people, one people." Still later, he
learned that the Jews had known it through their long
history but that "it had been submerged by the multiform
individual struggle for Jewish existence/'
It was fortunate for Zionism that Brandeis had discovered
simultaneously the Jewish people and both its precious herit-
age and unparalleled experience. For it was the Jewish
laborer who brought him to Zionism, and it was Labor that
in a large measure gave his Zionism that glow and passion
of the last several years of his life. When in 1914 he ac-
cepted the chairmanship of the Zionist Provisional Emer-
gency Committee he said, with the humility so character-
i4 the words of
istic of his whole life, "I feel my disqualification for this
task. Throughout long years, which represent my own life,
I have been to a great extent separated from Jews. I am
very ignorant in things Jewish." What gave him the courage
to assume the responsibility was that he found among Jew-
ish laborers qualities of justice and democracy, a deep moral
feeling, a deep sense of the brotherhood of man, and high
intelligence.
At one of the many heated sessions of the Committee on
Arbitration of the International Ladies' Garment Workers,
a pale-looking laborer with high forehead and eyes full of
indignation hurled a mouthful of strange words at one of
the employers. The meaning of the words escaped Brandeis,
but not the crimson flush that covered the employer to his
ear lobes. When the meeting was adjourned, Brandeis, upon
inquiry, learned that the magic words which had had such
instantaneous effect were a quotation from the Book of
Isaiah. The pale-faced young man had quoted: "What mean
ye that ye beat my people to pieces, and grind the faces of
the poor . . . The spoil of the poor is in your houses/'
Brandeis was stunned. A disbelieving laborer from whose
lips the Hebrew of Isaiah rolled off with such ease and
earnestness, a stubborn employer whose heart was pierced
quickly and painfully by these words, was a novel experi-
ence indeed. He could not drive it from his mind. There
was more to it, he felt certain, than appeared on the surface.
The impression the young man had made, he decided, was
not due to a display of erudition. Neither could the refer-
ence to Isaiah have been an isolated incident. It seemed to
him to indicate a habit of life and a common background
for the employer and employee.
Brandeis was soon convinced that he had guessed right.
At subsequent meetings, in the midst of a heated harangue,
he would hear a man shout with singular emphasis, "Ihr
darft sich shemen! Passt sich dos far a idinT (Shame on
justice Brandeis i 5
you! Is this conduct worthy of a Jew?) Brandeis was dis-
turbed. About that time, December 10, 1910, the Jews of
Boston were surprised to see the name of Louis Dembitz
Brandeis appended to the following statement:
"I have a great deal of sympathy for the [Zionist] move-
ment, and I am deeply interested in the outcome of the
propaganda. These so-called dreamers are entitled to
the respect and appreciation of the entire Jewish
people. ... I believe the Jews can be just as much
of a priest people today as they ever were in the
prophetic days."
It was his first observation on the Jewish people. It was
intuitive, a leap in the dark, the pull of heredity. The cau-
tious Brandeis had not yet examined the facts, but it was
inevitable that he should. Isaiah at an arbitration table!
What was this unique background that had its hold both
on employer and employee? The matter merited and im-
portuned investigation.
He began to study his people. He returned to the Bible
with renewed interest, and saw it in a new light. It was no
longer for him a catechism of outmoded dogmas but the
record of a people's striving to know and be itself. A Chris-
tian friend recalled that when Mr. Brandeis first appeared
on the Zionist platform his face "shone with an inner light
that transformed his whole being." It may be added that
he was similarly transformed when he discovered the affinity
between his own views and the prophetic-Pharisaic amal-
gam.
Need any reader of Brandeis be told how that pragmatic
idealist reacted, say, to the following teachings or common-
places of Judaism: Education must continue throughout
life. Neither advanced age nor illness relieved a man of his
obligation to learn. Study superseded everything. The whole
system of Halachah is in essence factual and not conceptual.
i 6 the words of
Judges must be sticklers for facts as were Rabbi Johanan ben
Zakkai and his successors. To qualify as a member of the
Sanhedrin it was not sufficient that the candidate be expert
in the law but master of all knowledge attainable as well.
Utopia was not a spatial but a temporal concept. It was not
another Arcadia to which one might buy passage, but an
"end of days" to be achieved only by the sweat and toil of
the human race. In the scale of values works stood higher
than faith, and discipline than preachment. A poor man
must not be favored in a trial. Society was best founded on
objective and definitive justice rather than on subjective
and whimsical mercy. The individual was not more impor-
tant than society nor society than the individual, it being
imperative to balance the freedom of the one against his
duties to the other and vice versa. Read not "the writing of
God was graven [harut] on the tables [of the Law]/' but
that the writing of God on the tables signified freedom
[herut]. None is free but he who is occupied with the law.
No, the young man's quotation at the arbitration table
had not been an accident. It was part of a heritage that
embodied the life experience, dreaming, and thinking of
the people. There was such a people, a Jewish people. They
lied who tried to deny its existence. The "people's advocate"
became also the Jewish people's advocate.
Mr. Brandeis will not be remembered because of the
originality of his philosophy. He leaves behind no ponder-
ous, iron-clad system of irrefutable and imperishable
theories. The man was too modest and too practical for
such conceits. Then again his faith had never failed him
and his world had never become a "waste land" strewn with
broken images and withered stumps of time. He gladly
accepted the eternal verities. The Prophets, Tom Paine,
Thomas Jefferson, the Declaration of Independence, the
Justice 'Brandeis * l 7
Constitution, and Abraham Lincoln sufficed him. He was
not in search of the nebulous trail of ultimates. He did not
believe that our society was diseased because of a want of
philosophy. Neither would he concede that our spiritual
disorganization and communal dislocation could be reme-
died by some new-fangled ideology or ex-machina creed.
He was of the opinion that the Jewish, Christian, American
heritage contained the wherewithal with which in due time
to heal and reconstruct society. Mr. Brandeis will be re-
membered because he insisted that fine execution was no
less important than speculation and the techniques of
implementation were no less essential than faith itself. His
never-failing optimism derived from this assumption, and
from his own ability to devise social controls for social
amelioration.
Mr. Brandeis was the typical and rarest representative of
his time. He was of the world, modern, and of the scientific
temper, but he also remained distant and aloof, and never
became the slave of mechanical devices. Indeed, Mr. Bran-
deis was never the slave of anything or anyone. No passion,
habit, hobby, or caprice could claim him. He was the master
of all that assailed or beckoned or surged through him. In
the realm of his being he was as absolute as the ruler of a
totalitarian state. The French poet, Vigny, wrote that
Destiny directs one half of a man's life, and that his char-
acter does the other half. Of Mr. Brandeis, one is tempted
to say that his character was the arbiter of his destiny. And
this perhaps was the secret and essence of the man.
Mr. Brandeis was as noble a Pharisee as ever lived. He
adhered to a Shulhan Aruch as piously and unfalteringly as
did Rabbi Akiba, Rabbi Joseph Karo, or Rabbi Moses
Isserles. "Jews," he once asserted almost in the very language
of these men and with the earnestness that characterized
them, "who know the ritual law should understand that
there can be no compromise between clean and unclean
18* the words of
things/' In his later years he frequently spoke with rever-
ence of "our Torah." Shiftless men, the playthings of desire
and devotees of the ephemeral, gaped in wonderment at his
unswerving fidelity to his code of conduct. Superficial
modernists, men of easy conscience, dilettanti, and cynics
mocked his attention to detail, his stubborn insistence on
efficiency, and his adamant resistance to compromise. But
this was the man. No appraisal of his career, or evaluation
of his character, or appreciation of his personality are con-
ceivable or possible without due consideration of this Phari-
saic, puritanic, Gibraltar-like quality of his.
Mr. Brandeis was a modern of the moderns. He followed
with absorbing interest the development of science, expan-
sion of industry, and increase of civilization. But he was
apprehensive of what men generally describe as progress.
He had read in the Psalms: "Except the LORD build the
house they labor in vain that build it." He had heard Emer-
son say that "No institution will be better than the insti-
tutor." And he concluded that science was a fraud, industry
a curse, and civilization a misnomer, if they did not serve
to make men free. For Mr. Brandeis was not a pagan. Intel-
lectual enjoyment and aesthetic delight when divorced from
goodness were not for him the summum bonum.
In this regard too Mr. Brandeis was Hebraic, in the
prophetic tradition. The existence of slums darkened for
him the brilliance of universities and the splendor of
museums. The skill of the machine and the magnitude of
production were no atonement for the exploitation of labor.
Philosophy, art, science, industry, government were not to
develop, as it were, in a vacuum unrelated to one another
and unconcerned with society. They were to function for
the welfare of man. Progress was not that which was con-
temporary or new or ingenious or the latest mechanical
device. Progress was that which was consistent with "human
truths" and human freedom.
'Justice Erandeis 19
Mr. Brandeis' whole career is an object lesson in freedom.
He lived as if he had all his days set out to prove freedom's
meaning, purpose, and beauty. He learned early that free-
dom consisted not solely of the removal of external au-
thority but in an intelligent exercise of the will. It was not
the gift of the gods but the fruit of diligent and patient
discipline. "There were more things which Diogenes would
have refused, than there were which Alexander could have
given or enjoyed/' Men were free if they could maintain
their conscience arid adhere to their code against the pres-
sure of immediate desires, if they could cultivate their high-
est faculties at the expense of the lower. As long as we are
enmeshed in tangled thickets of sensual and conventional
living we were not free. Mr. Brandeis desired freedom more
than anything in life and he achieved it through the exercise
of the will. He rose above the temptations that compass us
on every side. He lived in Spartan simplicity from convic-
tion. No force on earth could make him alter his way of
life. The social whirl of Boston or Washington saddened
him. It never attracted him. Not that he was unsocial, cool,
ascetic, or even austere. Only those who did not know him
or those who could not resist the pull of fashion thought of
him in that light. Those who saw him at close range found
him conversable, warm, simple, and gracious. A child felt
as much at home with him as did the sage. His life was
ordered and disciplined, not because he was by inclination
or temperament a hermit or recluse. Quite the contrary is
true. Mr. Brandeis desired to live abundantly. But he real-
ized that life could not possibly be abundant unless it was
free.
It was his love of freedom and even more his possession
of it that made him the consecrated American he was. His
patriotism reached down to the roots of his being. For
America was not only bread, raiment, and hearth; it was
"the world's best hope," the experiment par excellence in
20* the words of
democracy, i.e., in freedom. Mr. Brandeis had taken long
drafts from Roger Williams, Jefferson, Lincoln, Whitman.
He understood what the first and later Fathers of the Re-
public, had taken the core of Americanism to be. They had
not come here, they had not fought England, they had not
set brother against brother in order that we might become
the richest and most powerful nation on the face of the
earth. They toiled and bled that we might enjoy the bless-
ings of liberty. Mr. Brandeis followed the thorny path. He
risked all, the distinguished career he had achieved at an
earlier age than most men, the friends he had made, the
quiet he loved, and his very reputation to recapture for
America's masses the freedom that unparalleled industrial
expansion had deadened. For years he was a target of abuse,
calumny, hatred. Men of power and prominence rose up
against him to devour him. Of him, alas for the interested
perverseness of man, five United States Senators wrote,
"One whose reputation for honesty and integrity among
his associates has proved to be bad, which reputation has
been justified by his own conduct." Mr. Brandeis did not
flinch; he suffered ecstatically as any martyr does for his
faith. He was an American, and of Americans Washington
testified that their love of liberty was interwoven with every
ligament of their hearts.
It was this traditional conception of America and his deep
attachment to freedom that brought him closer to the Jew-
ish people. No sooner did he come face to face with Jews
than he grasped the uniqueness of their history. Here was a
strange phenomenon, a burning bush that was not con-
sumed, a despised and tormented people that chose to live,
to live and be itself. When the true cause of Israel's martyr-
dom flashed upon him, he became a resolute and confident
Jew. For the history of Israel is eccentric and its martyrdom
vain if it is not one long struggle for freedom. The Jew
is not genuine if he is not the bravest soldier on the battle-
'Justice 'Brandeis 2 l
field of liberty. His experience is unilateral, restricted, writ-
ten into one covenant, that kings and rulers, mobs and
majorities shall not lord it over the consciences of their
brethren.
After turning the pages of the Bible, Graetz, and Herzl,
Mr. Brandeis realized that his people's huge affliction was
the result of continuous resistance to world trusts. Because
Israel was small and weak it was not yet sufficient reason
why it should be swallowed up by the many and mighty.
Sheer bigness was a curse. God had called Amos from Tekoa
and Lincoln from Gentryville. Mr. Brandeis recognized in
the shepherd of Tekoa the spiritual father of the rail-splitter
from Gentryville. Lincoln unsheathed the sword to preserve
justice and freedom. Israel suffered martyrdom to maintain
its cause and conscience.
It was a great day for Mr. Brandeis when he discovered
that Americanism and Judaism were of one pattern.
PART TWO
THE WORDS OF
JUSTICE BRANDEIS
ABNORMAL AND PRIVILEGED
In every society there must be some who are abnormal, and
some who are blinded by privilege. One cannot properly feel
even indignation at either. They are rather subjects for sym-
pathy. But we must seek steadily to nullify their influence,
and limit their numbers.
AB SOLUT E
Nobody ought to be absolute; everybody ought to be
protected from arbitrariness and wrong decisions by the
representations of others who are being affected.
ABSOLUTE POWER
The objections to despotism and monopoly are funda-
mental in human nature. They rest upon the innate and
ineradicable selfishness of man. They rest upon the fact that
absolute power inevitably leads to abuse. 1
1 See also Monopoly.
25
26* tbe words of
ABSTRACT THINKING
Abstractions are frequently attractive, ingenious, and
valuable. But ever so often abstract thinking borders on
mysticism. Whenever that happens I have a feeling that
reason rests and imagination takes over.
A DAY'S WORK
[5] I rise early because no day is long enough for a day's
work.
AGREEMENT
Every agreement curtails the liberty of those who enter
into it.
AMENDING THE CONSTITUTION
I see no need to amend our Constitution. It has not lost its
capacity for expansion to meet new conditions, unless it be
interpreted by rigid minds which have no such capacity.
Instead of amending the Constitution, I would amend men's
economic and social ideals.
AMEND MENT
A code of law that makes no provision for its amendment
provides for its ultimate rejection.
AMERICA
America, dedicated to liberty and the brotherhood of
man, rejected the aristocratic principle of the superman as
applied to peoples as it rejected the principle when applied
to individuals. America has believed that each race had some-
thing of peculiar value which it can contribute to the attain-
ment of those high ideals for which it is striving. America
has believed that we must not only give to the immigrant
the best that we have, but must preserve for America the
good that is in the immigrant and develop in him the best
of which he is capable. America has believed that in differ-
Justice 'Brandeis 27
entiation, not in uniformity, lies the path of progress. 2 ' It
acted on this belief; it has advanced human happiness, and
it has prospered.
*
[10] We have slipped back badly in twenty-Eve years, in
order, security to life and property; in liberty of speech,
action and assembly; in culture; and, in many respects, in
morality. Father would have said: "Pfui."
*
We shall learn most by unprejudiced painstaking study
of our own strengths and weaknesses; by enquiry into our
own achievements and shortcomings. It is thus that we may
best learn how great are the possibilities of high accomplish-
ments in the future; what are the real dangers with which we
shall be confronted.
America, which seeks "the greatest good of the greatest
number," cannot be content with conditions that fit only
the hero, the martyr or the slave. 3
America in the last century proved that democracy is a
success. 4
AMERICAN DEMOCRACY
American democracy rests upon the basis of the free citi-
zen. 5
AMERICAN IDEALS
6
[15] What are the American ideals? They are the develop-
ment of the individual for his own and the common good;
2 Repeated under Differentiation Not Uniformity.
8 Repeated under Greatest Good of Greatest Number.
4 Repeated under Industrial Democracy and Thinking.
6 Repeated under Financial Dependence.
6 See also Conservation.
28" the words of
the development of the individual through liberty, and the
attainment of the common good through democracy and
social justice.
Our form of government, as well as humanity, compels
us to strive for the development of the individual man. Under
universal suffrage (soon to be extended to women) every
voter is a part ruler of the state. Unless the rulers have, in
the main, education and character, and are free men, our
great experiment in democracy must fail. It devolves upon
the state, therefore, to fit its rulers for their task. It must
provide not only facilities for development but the oppor-
tunity of using them. It must not only provide opportunity,
it must stimulate the desire to avail of it. Thus we are com-
pelled to insist upon the observance of what we somewhat
vaguely term the American standard of living; we become
necessarily our brothers 7 keepers. 7
Manhood is what we are striving for in America. We are
striving for democracy; we are striving for the development
of men. It is absolutely essential in order that men may
develop that they be properly fed and properly housed, and
that they have proper opportunities of education and recre-
ation. We cannot reach our goal without those things. But
we may have all those things and have a nation of slaves.
We Americans are committed not only to social justice
in the sense of avoiding things which bring suffering and
harm, like unjust distribution of wealth; but we are commit-
ted primarily to democracy. The social justice for which we
are striving is an incident of our democracy, not the main
end. It is rather the result of democracy perhaps its finest
7 See also Brotherhood, Greatest Good of Greatest Number.
'Justice 'Brandeis '2$
expression but it rests upon democracy, which implies the
rule by the people. 8
#
Our American ideals cannot be attained unless an end is
put to the misery due to poverty. 9
AMERICANIZATION
What is Americanizaiton? It manifests itself, in a super-
ficial way, when the immigrant adopts the clothes, the man-
ners and the customs generally prevailing here. Far more
important is the manifestation presented when he substi-
tutes for his mother tongue the English language as the com-
mon medium of speech. But the adoption of our language,
manners and customs is only a small part of the process. To
become Americanized the change wrought must be funda-
mental. However great his outward conformity, the immi-
grant is not Americanized unless his interests and affections
have become deeply rooted here. And we properly demand
of the immigrant even more than this he must be brought
into complete harmony with our ideals and aspirations and
cooperate with us for their attainment. Only when this has
been done will he possess the national consciousness of an
American.
AMERICAN JEWISH COMMUNITY 10
[20] I have not given much thought to the future of the
American Jewish community. Perhaps because I was sure
that it will always be there. Assimilation will undoubtedly
make inroads. But what of it? Have not persecution, con-
version, and indifference claimed their victims? The charac-
ter and fortitude of those who will survive will more than
8 Repeated under Industrial Democracy.
9 Repeated under Efficiency and Social Ideals,
10 See also Noblesse Oblige.
30* the words of
make up for the losses the American Jewish community will
suffer.
AMERICANS
There is in most Americans some spark of idealism, which
can be fanned into a flame. It takes sometimes a divining
rod to find what it is; but when found, and that means often,
when disclosed to the owners, the results are often most
extraordinary.
AMERICAN STANDARD OF LIVING
What does this standard imply: In substance, the exer-
cise of those rights which our Constitution guarantees the
right to life, liberty and the pursuit of happiness. Life, in
this connection, means living, not existing; liberty, freedom
in things industrial as well as political; happiness includes,
among other things, that satisfaction which can come only
through the full development and utilization of one's fac-
ulties.
AMERICA'S FUNDAMENTAL LAW
America's fundamental law seeks to make real the broth-
erhood of man. 11
AMERICA'S INSISTENT DEMAND
America's insistent demand in the twentieth century is for
social justice. 11
ANGELS AND DEVILS
[25] Those who have given up the belief in witchcraft
must be hard put to explain their continued belief in the
existence of angels and devils.
ANTI-SEMITISM AND THE NAZIS
Prior to the advent of Nazism we used to think that anti-
Semitism was the Jewish people's misfortune and the world's
11 Repeated under Jewish Spirit and America.
Justice TSrandeis 3 1
disgrace. The Nazis have convinced many that anti-Semi-
tism can also be a boomerang.
ARE ITRATION
I believe that arbitration is going to be a comparatively
insignificant factor in the prevention and settlement of trade
disputes. Arbitration implies and involves the shirking of
responsibility by the chief parties to the dispute. The burden
of the task of adjustment is shifted onto the shoulders of
some alien tribunal. The result is that employer and work-
man fail to get the discipline they ought to have, and they
are prevented from obtaining that intimate insight into one
another's needs and difficulties without which essential jus-
tice is likely to be missed.
But beyond that, the arbitrators are rather likely, from
the very nature of their task, to hand down a wrong award.
They may easily miss the heart of the difficulty, because
they are not in the midst of the actual struggle. No, I do not
anticipate any very great results, in the long run, from arbi-
tration. . . .
The best of all is ... strong unions and direct adjust-
ment between employer and workmen.
ARGUMENT OF FORCE
Silence coerced by law the argument of force in its worst
form. 12
ARITH METIC
Mellen was a masterful man, resourceful, courageous,
broad of view. He fired the imagination of New England,
but being oblique of vision merely distorted its judgment
and silenced its conscience. For a while he triumphed with
impunity over laws human and divine, but as he was ob-
sessed with the delusion that two and two make five he fell
12 Repeated under Freedom of Speech.
32- the words of
at last a victim of the relentless rules of humble arithmetic.
Remember, O Stranger!
Arithmetic is the first of the sciences and the mother of
safety. #
[30] Figuresa language implying certitude.
ART
Living among things of beauty is a help toward culture
and the life worth-while.
ARTIFICIAL LEGAL CONVICTION
No instance has been found where under our law a fact-
finding body has been required to give to evidence an effect
which it does not inherently possess. Proof implies persua-
sion. To compel the human mind to infer in any respect
that which observation and logic tells us is not true inter-
feres with the process of reasoning of the fact-finding body.
It would be a departure from the unbroken practice to re-
quire an artificial legal conviction where no real conviction
exists.
ARTISTS
Though the work of the greatest artists may command the
highest prices, their incentive has not been money. It has
been the desire to achieve professional success. 13
AVERAGES
I abhor averages. I like the individual case. A man may
have six meals one day and none the next, making an aver-
age of three per day, but that is not a good way to live.
BANKER-MIDDLEMAN 14
[35] The investment banker has, within his legitimate prov-
ince, acquired control so extensive as to menace the public
13 Repeated under Money-making and Service.
" See also People's Own Gold.
Justice 'Brandeis 3 3
welfare, even where his business is properly conducted. If
the New Freedom is to be attained, every proper means of
lessening that power must be availed of. A simple and effec-
tive remedy, which can be widely applied, even without new
legislation, lies near at hand: Eliminate the banker-middle-
man where he is superfluous.
BANKERS' ETHICS
The organization of the Money Trust is intensive, the
combination comprehensive; but no other element was rec-
ognized as necessary to render it stable, and to make its dy-
namic force irresistible. Despotism, be it financial or politi-
cal, is vulnerable, unless it is believed to rest upon a moral
sanction. 15 The longing for freedom is ineradicable. It will
express itself in protest against servitude and inaction, unless
the striving for freedom be made to seem immoral. Long ago
monarchs invented, as a preservative of absolutism, the fic-
tion of 'The divine right of kings/' Bankers, imitating roy-
alty, invented recently that precious rule of so-called "Eth-
ics," by which it is declared unprofessional to come to the
financial relief of any corporation which is already the prey
of another "reputable" banker. . . .
The "Ethical" basis of the rule must be that the interests
of the combined bankers are superior to the interests of the
rest of the community. Their attitude reminds one of the
"spheres of influence" with ample "hinterlands" by which
rapacious nations are adjusting differences. 16
BANKERS' FAILURE
This failure of banker-management is not surprising. The
surprise is that men should have supposed it would succeed.
For banker-management contravenes the fundamental laws
of human limitations: First, that no man can serve two mas-
is Repeated under Despotism.
16 See also Monopoly.
34- the words of
ters; second, that a man cannot at the same time do many
things well.
BANKERS' FUNCTION
It is not the proper function of the banker to construct,
purchase, or operate railroads, or to engage in industrial
enterprises. The proper function of the banker is to give to
or to withhold credit from other concerns; to purchase or
to refuse to purchase securities from other concerns; and to
sell securities to other customers. The proper exercise of this
function demands that the banker should be wholly de-
tached from the concern whose credit or securities are under
consideration. His decision to grant or to withhold credit^
to purchase or not to purchase securities, involves passing
judgment on the efficiency of the management or the sound-
ness of the enterprise; and he ought not to occupy a position
where in so doing he is passing judgment on himself. Of
course detachment does not imply lack of knowledge. The
banker should act only with full knowledge, just as a lawyer
should act only with full knowledge. The banker who under-
takes to make loans to or purchase securities from a railroad
for sale to his other customers ought to have as full knowl-
edge of its affairs as does its legal adviser. But the banker
should not be, in any sense, his own client. He should not,
in the capacity of banker, pass judgment upon the wisdom
of his own plans or acts as railroad man.
Such a detached attitude on the part of the banker is
demanded also in the interest of his other customers the
purchasers of corporate securities. The investment banker
stands toward a large part of his customers in a position of
trust, which should be fully recognized. The small investors,
particularly the women, who are holding an ever-increasing
proportion of our corporate securities, commonly buy on
the recommendation of their bankers. The small investors
do not, and in most cases cannot, ascertain for themselves
Justice T$ r a n d e i s -35
the facts on which to base a proper judgment as to the
soundness of securities offered. And even if these investors
were furnished with the facts, they lack the business experi-
ence essential to forming a proper judgment. Such investors
need and are entitled to have the bankers' advice, and obvi-
ously their unbiased advice; and the advice cannot be un-
biased where the banker, as part of the corporation's man-
agement, has participated in the creation of the securities
which are the subject of sale to the investor.
BANKERS' POWER 17
The bankers' power grows by what it feeds on. Power
begets wealth; and added wealth opens ever new opportuni-
ties for the acquisition of wealth and power. The operations
of these bankers are so vast and numerous that even a very
reasonable compensation for the service performed by the
bankers would, in the aggregate, produce for them incomes
so large as to result in huge accumulations of capital. But
the compensation taken by the bankers as commissions or
profits is often far from reasonable. Occupying, as they so
frequently do, the inconsistent position of being at the same
time seller and buyer, the standard for so-called compensa-
tion actually applied is not the "Rule of reason/' but "All
the traffic will bear." And this is true even where there is no
sinister motive. The weakness of human nature prevents
men from being good judges of their own deservings. 18
BETRAYAL OF OUR GREAT HERITAGE
[40] We cannot afford to be represented by men who are
dishonest and reckless to the great heritage of an honorable,
glorious past, handed down to us by our fathers.
17 See also Interlocking Directorates.
18 Repeated under Human Nature.
36- the words of
BETTER THAN PEACE
There is something better than peace, and that is the
peace that is won by struggle.
19
BIBLE
The Bible first attracted me because of its plainness of
speech, its insistence on the righteousness of the individual
and justice of the group, the unrestraint with which it ar-
raigns the Jewish people and its patriarchs and chosen lead-
ers. I wonder whether any government today would risk
publishing a document depicting the nation's most favored
ruler as the Bible does David. I doubt whether there is any-
thing in the authorized and approved annals of the nations
comparable to the rapid review of the lives of the kings
found in the Book of Kings, particularly to that terrifying
brief verse, "And he did that which was evil in the sight of
the LORD: he departed not all his days from the sins of
Jeroboam the son of Nebat, wherewith he made Israel to
sin."
The Bible is great as wisdom and law, and greatest as
prophecy. Greatest because rarest. Man somehow gropes
his way to wisdom and law. But he no sooner acquires them,
than he abuses them. He does not live by them of his own
free will. He must be driven to do so. He must be accused
and lashed when he ignores them. But this can be done
only by those who are themselves above reproach and pre-
pared to face martyrdom. Such men are rare. And such men
were the Prophets. They denounced the follies and crimes
of their own kings and people as they did of the mightiest
empires of their day. They ridiculed the boastfulness of dic-
tators as daringly as they did the inertness of idols. Add to
this their abiding faith in man's goodness, their optimism
and visions of a world living in peace, security, and brother-
19 Repeated under Vital and Beyond Price.
"Justice "Brandeis -37
hood, the unmatched power and beauty of their language,
and they stand alone among the benefactors of the human
race. It is no exaggeration to say that they are still the first
to reprove us when we go astray. I think that many people
employ the expression "an Old Testament prophet" as a
synonym for conscience. 2<>
BIG BUSINESS 21
"Big business" will then mean business big not in bulk or
power, but great in service and grand in manner.
BIGNESS 22
There used to be a certain glamour about big things. Any-
thing big, simply because it was big, seemed to be good and
great. We are now coming to see that big things may be
very bad and mean.
*
[45] Size, we are told, is not a crime. But size may, at least,
become noxious by reason of the means through which it
was attained or the uses to which it is put.
#
The evils of bigness are something different from and
additional to the evils of monopoly. A business may be too
big to be efficient without being a monopoly; and it may be
a monopoly and yet (so far as size is concerned) may be well
within the limits of efficiency.
*
When . . . you increase your business to a very great
extent, and the multitude of problems increase with its
20 The hour struck 9 A.M. The conversation ended abruptly. When
I next came to the Brandeis home, October 7, 1941, in the company
of Judge Louis E. Levinthal, it was to attend his funeral service.
21 See also Industrial Liberty, Monopoly.
22 See also Monopoly.
38- the words of
growth, you will find, in the first place, that the man at the
head has a diminishing knowledge of the facts and, in the
second place, a diminishing opportunity of exercising a care-
ful judgment upon them. Furthermore and this is one of
the most important grounds of inefficiency of large institu-
tionsthere develops a centrifugal force greater than the
centripetal force. Demoralization sets in; a condition of less-
ened efficiency presents itself. . . . These are disadvan-
tages that attend bigness.
*
In all human institutions there must be a limit of greatest
efficiency. . . . Everybody in his experience knows his own
limitations; knows how much less well he can do many
things than a few things. There undoubtedly is a limit with
a railroad, as in the case of other institutions, where they
may be too small; but there is another limit where they may
be too large where the centrifugal force will be greater than
the centripetal, and where, by reason of the multiplicity of
problems and the distance to the circumference, looseness
of administration arises that overcomes any advantage from
size, overcomes it so far as to make it relatively a losing
proposition. 2 *
*
The successful, the powerful trusts, have created condi-
tions absolutely inconsistent with these America's indus-
trial and social needs. It may be true that as a legal proposi-
tion mere size is not a crime, but mere size may become an
industrial and social menace, because it frequently creates
as against possible competitors and as against the employees
conditions of such gross inequality, as to imperil the welfare
of the employees and of the industry.
23 See also Organization.
Justice *Brandeis -39
BLIGHTING INFLUENCE OF
JOURNALISTIC GOSSIP 24
[50] The press is overstepping in every direction the obvi-
ous bounds of propriety and of decency. Gossip is no longer
the resource of the idle and of the vicious, but has become a
trade, which is pursued with industry as well as effrontery.
To satisfy a prurient taste the details of sexual relations are
spread broadcast in the columns of the daily papers. To
occupy the indolent, column upon column is filled with idle
gossip, which can only be procured by intrusion upon the
domestic circle. The intensity and complexity of life, attend-
ant upon advancing civilization, have rendered necessary
some retreat from the world, and man, under the refining
influence of culture, has become more sensitive to publicity,
so that solitude and privacy have become more essential to
the individual; but modern enterprise and invention have,
through invasions upon his privacy, subjected him to mental
pain and distress, far greater than could be inflicted by mere
bodily injury. Nor is the harm wrought by such invasions
confined to the suffering of those who may be made the sub-
jects of journalistic or other enterprise. Each crop of un-
seemly gossip, thus harvested, becomes the seed of more,
and in direct proportion to its circulation, results in a lower-
ing of social standards and of morality. Even gossip appar-
ently harmless, when widely and persistently circulated, is
potent for evil. It both belittles and perverts. It belittles by
inverting the relative importance of things, thus dwarfing
the thoughts and aspirations of a people. When personal
gossip attains the dignity of print, and crowds the space
available for matters of real interest to the community, what
wonder that the ignorant and thoughtless mistake its rela-
tive importance. Easy of comprehension, appealing to that
weak side of human nature which is never wholly cast down
24 See also Propriety, Right to Privacy.
40* the words of
by the misfortunes and frailties of our neighbors, 25 no one
can be surprised that it usurps the place of interest in brains
capable of other things. Triviality destroys at once robust-
ness of thought and delicacy of feeling. No enthusiasm can
flourish, no generous impulse can survive under its blighting
influence. 26
BOLDNESS
Sometimes, if we would guide by the light of reason, we
must let our minds be bold. 27
BRAIN
The brain is like the hand. It grows with using? 8
BROTHERHOOD 29
There is one feature in our ideals and practices which is
peculiarly American it is inclusive brotherhood.
Other countries, while developing the individual man,
have assumed that their common good would be attained
only if the privileges of their citizenship should be limited
practically to natives or to persons of a particular nationality.
America, on the other hand, has always declared herself for
equality of nationalities as well as for equality of individ-
uals. It recognizes racial equality as an essential of full hu-
man liberty and true brotherhood, and that racial equality
is the complement of democracy. America has, therefore,
given like welcome to all the peoples of Europe.
The spirit which subordinates the interests of the individ-
ual to that of the class is the spirit of brotherhood a near
25 Repeated under Human Nature.
26 Repeated under Triviality,
27 Repeated under Experimentation.
28 Repeated under Industrial Democracy and Thinking.
29 See also American Ideals.
Justice Brandets -44
approach to altruism; it reaches pure altruism when it in-
volves a sacrifice of present interests for the welfare of others
in the distant future.
BUSINESS A PROFESSION
30
[55] Business should be, and to some extent already is, one
of the professions.
Why should not we recognize in the great realm of busi-
ness those principles which have been the common property
of the most advanced thought? Every man in the medical
world glories in having given to the world something which
advances medical science. Every man in the field of archi-
tecture glories when he can give to the world something that
advances architectural science. You will find exactly the
same thing in almost every department of engineering. Why
should it not be so in business? Is there any lack of oppor-
tunity for competition, honorable competition, in the field
of engineering or of architecture or of medicine? They can
play the game wherever a man can see it. There need be no
secrets when it comes to the question of advancing the art
to which man devotes himself. And the same is absolutely
true of business and will be recognized as true of business as
soon as men come to recognize that business is one of the
noblest and most promising of all the professions.
BUSINESS SUCCESS
In the field of modern business, so rich in opportunity for
the exercise of man's finest and most varied mental faculties
and moral qualities, mere money-making cannot be regarded
as the legitimate end. Neither can mere growth in bulk or
power be admitted as a worthy ambition. Nor can a man
nobly mindful of his serious responsibilities to society, view
30 See also Money-making and Service.
42 the words of
business as a game; since with the conduct of business hu-
man happiness or misery is inextricably interwoven.
Real success in business is to be found in achievements
comparable rather with those of the artist or the scientist,
of the inventor or the statesman. And the joys sought in the
profession of business must be like their joys and not the
mere vulgar satisfaction which is experienced in the acquisi-
tion of money, in the exercise of power or in the frivolous
pleasure of mere winning.
CALMNESS
To the exercise of good judgment calmness is ? in times of
deep feeling and on subjects which excite passion, as essen-
tial as fearlessness and honesty. 31
CAPACITY OF INDIVIDUAL MAN
Man's works have in many instances outrun the capacity
of the individual man. For no matter how good the organ-
ization, the capacity of an individual man must ordinarily
determine the success of a particular enterprise, not only
financially to the owners, but in service to the community.
Organization can do much to make possible larger efficient
units; but organization can never be a substitute for initia-
tive and for judgment. 32 These must be supplied by the chief
executive officers, and nature sets a limit to their possible
accomplishment.
CENTRALIZATION
[60] History teaches, I believe, that the present tendency
toward centralization must be arrested, if we are to attain
the American ideals, and that for it must be substituted
intense development of life through activities in the several
States and localities. The problem is a very difficult one, but
31 Repeated under Freedom of Speech.
32 Repeated under Organization.
Justice ftrandeis '43
the local University is the most hopeful instrument for any
attempt at solution.
CHALLENGE OF EXISTING LAW
The challenge of existing law is not a manifestation pecul-
iar to our country or to our time. Sporadic dissatisfaction
has doubtless existed in every country at all times. Such
dissatisfaction has usually been treated by those who govern
as evidencing the unreasonableness of law breakers. The
line "No thief e'er felt the halter draw with good opinion
of the law/' expresses the traditional attitude of those who
are apt to regard existing law as "the true embodiment of
everything that's excellent." It required the joint forces of
Sir Samuel Romilly and Jeremy Bentham to make clear to
a humane, enlightened and liberty-loving England that
death was not the natural and proper punishment for theft.
Still another century had to elapse before social science
raised the doubt whether theft was not perhaps as much the
fault of the community as of the individual.
In periods of rapid transformation, challenge of existing
law, instead of being sporadic, becomes general. Such was
the case in Athens . . . Germany . . . the recent dissatis-
faction with our law as administered [has] been due, in large
measure, to the fact that it had not kept pace with the rapid
development of our political, economic and social ideals. In
other words, . . . the challenge of legal justice [is] due to
its failure to conform to contemporary conceptions of social
justice.
CHANGE IN A DEMOCRACY
In a democratic community men who are to be affected
by a proposed change of conditions should be consulted and
the innovators must carry the burden of convincing others
at each state of the process of change that what is being
done is right.
44* the words of
CHARACTER
It is only in the Latin sense that talents are to be "ad-
mired"; they are to be wondered at. But character only is
to be "admired" as we use that word. It is the effort the
attemptthat tells. Man's work is, at best, so insignificant
compared with that of the Creator it is all so Lilliputian,
one cannot bow before it. 33
CHARACTER AND INTELLIGENCE
Democratic ideals can be attained only where those who
govern exercise their power not by alleged divine right or
inheritance, but by force of character and intelligence. 34
CHILD
[65] Since the child is the father of the man, we must bear
constantly in mind that the American standard of living can-
not be attained or preserved unless the child is not only well
fed but well born; unless he lives under conditions whole-
some morally as well as physically; unless he is given educa-
tion adequate both in quantity and in character to fit him
for life's work.
CHOSEN PEOPLE 35 ' a
That the Jews have regarded themselves as the chosen
people is understandable. They were for a period of many
centuries the only monotheists in the world. b They alone
33 Repeated under Man's Work.
34 Repeated under Democratic Ideals.
35 See also Jews Today.
a I give here a summation of what the Justice said on tlie question
of a "chosen people" on the several occasions I brought up the
subject.
b When I mentioned the opinion of certain scholars to the effect
that some primitive tribes were monotheists, the Justice countered
that that was an abuse of language. For the monotheism of those
tribes, he said, if it existed was unreasoned, as, for example, when a
child speaks accidentally of war, or justice, or love. Furthermore,
he argued, that brand of monotheism had obviously had little
Justice Ttrandeis * 4 5
had the idea of one invisible God who could not be repre-
sented in images. 6 They alone spoke with ever more insist-
ence of a perpetual covenant with God. This, by the way,
seems to me to be the basic teaching of the Bible. God is
one and Israel is one and the two are bound together for
ever. d
True, all or most ancient peoples believed themselves to
be the favorites of certain gods. But I wonder whether the
relation was as firm and persistent. Anyway, the gods of the
Near East and the Graeco-Roman world collapsed and the
peoples disintegrated. Since the Jews and their God alone
escaped from the wreckage, it was natural that they should
grow closer to each other.
When the Western world was converted to Christianity
the belief in the election of Israel gathered new momentum.
For then everybody believed that Israel was a chosen peo-
ple. If there was any difference of opinion it was only as to
the identity of Israel. We can hardly blame the Jews for
having resolved the matter in their favor. They knew them-
selves to be Israel and knew that everybody recognized
Israel as having been chosen by God.
Christian excesses against the Jews strengthened this con-
viction even more than did the collapse of the pagan gods
and pagan states. For the hounded and persecuted, finding
themselves more and more isolated, grew closer and closer
to their God and drew their God closer to themselves. Cer-
eEect on those who professed it. When I suggested that some of the
Greek philosophers appeared to have been monotheists, he said that
that was most likely true, but that all the same the Greek people
remained polytheists.
c I mentioned the fact that the earliest Roman cult was imageless.
The Justice's comment was that the Jews had probably never heard
of it.
d I remarked that the Zohar spoke of God and Israel as being called
one when together, but not when parted. The Justice smiled with
satisfaction as he did whenever I interjected that there was support
in Jewish literature for what he was saying.
46 * the words of
tainly the more vigorously the Church argued that it was
Israel and that it was God's elect, the faster the Jews held
on to their ancient belief.
So much I find reasonable and so much I understand.
Whether this in the last analysis is traceable to tribal self-
glorification, or whether it has done the Jews and the world
good or harm, is a question that requires the careful investi-
gation of twenty-five centuries of history.
What, however, need not wait for the results of research
is the revision or reinterpretation, as you call it, of this be-
lief. 6 That is, assuming that we wish to continue speaking
of ourselves as a chosen people/ When I ask for revision I
am not doing it because in recent years well-meaning liberals
discovered in the "dogma" of the election of Israel the roots
of Nazi race theories. That should give us no concern, except
insofar as we ought to open the eyes of the blind.
One of your colleagues g who was here several days ago
tried to reeducate me into anti-Zionism (He had mistakenly
assumed that because for many years my associations with
Jews were limited that I had been an anti-Zionist. As a
rabbi he should have known that most people are neither
for nor against. They're neutrals. And neutrality is at times
a graver sin than belligerence) , 36 ' h He began by saying, that
Zionism made for anti-Semitism, and concluded that the
6 1 had often mentioned that Jewish scholars were engaged in re-
interpreting the past and that one of them, Professor Mordecai M.
Kaplan, had founded a movement on the basis of its reconstruction.
f I drew the Justice into this discussion by telling him that the con-
cept of the chosen people had become a subject of controversy.
s The Justice did not mention the name of the rabbi and I did not
ask for it.
36 Repeated under Neutrality.
h When I left the Brandeis home I thought that the Justice had
raised his voice when he spoke of neutrality. I believed that he nad
in mind the neutrality of the United States, England, France, and
other world powers in the face of Nazi atrocities. He had spoken
feelingly of their inaction several days before.
Justice 'Brandeis -47
Jews had always been mindful of what the Gentiles were
saying.
I made no comment on his anti-Semitism argument. I
said only that the Jews were mindful to maintain high stand-
ards of education, ethics, morality, etc., lest they defame the
name of the God they claimed had chosen them, 1
We cannot and should not be oblivious of world opinion
but we certainly ought to be as attentive to what we have to
say to the world as to what the world has to say to or of us.
We must not permit the prejudiced and ignorant to shape
our lives. The prejudiced will always call the best worst and
the ignorant will confuse the two.
When I speak of revision it is because the idea of the
chosen people cannot mean today what it was understood
to mean in antiquity or the Middle Ages. There were too
many barriers between peoples for them to get acquainted
and see each other as they were. I doubt whether the ancient
Babylonians had learned much from the Egyptians, or the
Egyptians from them. That is, I doubt whether there was
wide-spread knowledge of the arts of one among the other,
or whether they read each other's literature or analyzed each
other's beliefs and way of life.
I hesitate to express an opinion as to what our own peo-
ple actually knew about the pagan peoples whom they con-
demned. My Bar Mitzvah, 5 I am told you once "informed
against" me, was delayed to my 54th k year. But my impres-
*I quoted Ezekiel, XXXVI, 20: "And when they came unto the
nations, whither they came, they profaned My Holy name; in that
men said of them : 'These are the people of the LORD, and are gone
forth out of His land/ " The Justice reflected for a moment but
made no comment.
* Hebrew for the "son of command" or "man of duty." Upon his
thirteenth birthday a Jewish boy, according to Jewish tradition,
reaches the age of duty and responsibility,
k At a mass celebration in honor of the Justice's seventy-fifth birth-
day I alluded to the fact that Mr. Brandeis had first discovered his
people in 1910, when he was 54 years old, adding that that year
48 the words of
sion is that the Jews did not know much and perhaps took
lightly what they did know. Egypt was an enemy, and so
were Babylonia, Assyria, and the smaller neighboring states,
and all of them were idolaters. 1 Hellenism was shut out of
view by Antiochus Epiphanes and Roman civilization by
its procurators and by its two or three mad kings. And again
the Greeks and Romans were idolaters. I wonder whether an
intimate knowledge of the life and work of Socrates, Peri-
cles, Plato, and Aristotle might not have led the Rabbis to
modify their views of the pagan world, and with it their con-
ception of a chosen people. According to Graetz there are
some kind words in Jewish sources for Alexander the Great
and some warm feelings for Julius Caesar. I do not recall to
should be remembered as the year of his Bar Mitzvah. I had the
privilege, on that occasion, of sharing the platform with Dr. Stephen
S. Wise and Justice Andrew A. Bruce, both of whom were close to
the Justice. I have had the feeling that one of them "informed
against" me. When we took tea after the meeting, Justice Bruce
evinced great interest in the institution of Bar Mitzvah.
1 1 pointed out that the Rabbis knew more about the Greeks and
Romans than was the general impression, that they used many Greek
and Latin loan-words, held the Greek language and culture in high
regard, were dazzled by the might and tumultuousness of the Roman
Empire, compared Rome to the sun, made it the goal of Moses and
David, and one of the Rabbis even praised the Romans for the roads,
aqueducts, and baths they had built everywhere. And some of them
may even have had some knowledge of Latin literature. I further
added that the Rabbis, however, saw through the duplicity of
Roman diplomacy and spoke bitterly of Roman barbaric acts and
the social inequality and injustice that prevailed in Rome itself.
R. Joshua b. Levi, I recalled, who had visited Rome, could not
forget the painful contrast between Roman treatment of marble
statues and the poor. The former, he noted, were covered with
expensive rugs to protect them against the winter's cold and the
.summer's heat. The latter were left uncared for to starve and
freeze. But, I concluded, it was probably undeniable that the
Rabbis' views of the Greeks were colored by the atrocities of Anti-
ochus, and their views of Rome by the conviction that Rome was
the new Edom r the arch-enemy of Israel. The Justice remarked that
we probably get as distorted a view of Rome in rabbinic writings
as we do of the Pharisees in the New Testament.
Justice 'Brandeis * 49
what the historian attributes the fact. But I surmise that it
was most probably due to the benevolence of which Alexan-
der and Caesar were capable and their tolerance of beliefs
and practices not their own. m In other words, a friendly
idolater could be distinguished from a hostile one. Might it
not be then that the culture of a friendly people, despite its
idolatrous character, might have been looked at more sympa-
thetically than when the same culture was that of an enemy
people.
What might not Philo's report of his mission to Rome
have been if he had had an audience with a Marcus Aurelius
instead of with Caligula. n Suppose the Jewish philosopher
had heard the Roman Emperor declare himself against lim-
iting Roman citizenship to Romans or had heard him say
that he, as the particular Marcus Aurelius, was a Roman
citizen, but that as a man he was a citizen of the world-
state. One of the Greeks, whose name I do not recall, said
m Generally speaking the Justice was right. It should be added, how-
ever, that the Rabbis looked critically at Alexander, as did Diogenes,
and that the Jews of Palestine did not forgive Caesar for having
made Antipater procurator of their country.
n The Justice had in mind the delegation which the Jews of Alex-
andria sent to Caligula in the year 40 C.E., of which delegation Philo
was a member.
1 mentioned the various reports in rabbinic literature of conversa-
tions or disputations between the Rabbis and distinguished pagans,
such as those of R. Joshua b. Hananiah and Hadrian, R. Akiba and
Tinius Rufus. I dwelt particularly on the report of the friendly per-
sonal relations between a Roman emperor Antoninus, who has been
variously identified as Marcus Aurelius, Septimius Severus, Cara-
calla, and Lucius Verus, with a Rabbi who in turn has been identified
with Rabbi Judah the Prince I and R. Judah the Prince II. The
Justice, to my surprise, asked me whether the reports were legendary.
I answered that that was the general opinion of scholars. He then
wished to know whether in those tales the Rabbis got the better of
the pagans. To which I replied that that was the case, so much so
that Antoninus, for example, first erects an altar to God, shows the
Jews great kindliness, and in the end becomes a true proselyte. The
Justice remained silent for a time, and then added, "It is clear that
5O the words of
of Athens that she had "distanced the rest of mankind in
thought and in speech, that her pupils [had] become the
teachers of the rest of the world; and she has brought it
about that the name 'Hellenes' suggests no longer a race but
an intelligence, and that the title 'Hellenes' is applied rather
to those who share our culture than those who share a
common blood." p
I ask what effect would these sentiments have made on
the Jewish sages? Would they have disregarded them and
still boasted of the superior intelligence of the Jewish chil-
dren of Palestine to the wise men of Athens? Q
Well, we need not speculate as to what they might have
done. But we know what we cannot, must not, and I am
certain do not wish to do. We cannot today pin the hopes
of humanity on any one particular people. We cannot today
single out any one particular people as being virtuous, wise,
and destined for greater things than all the rest. It would
seem to me that even the strictest adherents of the Jewish
faith ought to inquire whether their belief respecting the
election of Israel is not perhaps based on a misinterpretation
of revelation, or that there was a time limit to the belief.
Maybe it was to be maintained until the world had rid itself
of polytheism.
I should think it presumptuous for any people in this cen-
tury to assert that it alone had a mission for all peoples, but
that none of the other peoples had any mission for it. Every
if the Greeks and Romans had been favorably disposed toward the
Jews and there had been understanding and sympathy on both sides,
the Rabbis would have recognized the immense contributions those
two peoples made to the advancement of civilization, and might not
perhaps have rejected the possibility of their having been 'chosen'
in some way."
P This quotation, from Isocrates* Panegyricus, was abbreviated by the
Justice. I give it here in full in President Norlin's translation.
I had mentioned earlier that there were many tales about the eld-
ers or wise men of Athens in rabbinic writings and that in not a few
of those tales the Athenians are outwitted by Jewish children.
Justice Krandeis 5 f
people, it is becoming more and more evident, has its own
character. And insofar as it has a character of its own it has
a mission. For it has that elusive something, its essence^
which the other peoples do not have and of which they
may stand in need. But all other peoples also have those
elusive somethings, of some of which the Jewish people cer-
tainly stand in need. In the realm of things material one
people may be a solitary benefactor and not a beneficiary.
In the realm of the spirit there is no such solitary philanthro-
pist. Here all peoples give and take, some more and some
less, each giving what it has, and if it is wise it takes what
it needs.
The experience of the Jewish people is unique. It is Jew-
ish. Consequently the Jews have much to contribute toward
the solution of the problems that perplex and confound all
men. As a comparatively small people the Jewish people
may be in a position to do better than bigger peoples. Pales-
tine, when the Jews constitute the majority there, may, be-
cause of its very smallness, serve as a laboratory for some
far-reaching experiments in democracy and social justice.
But let us not forget that there are other small peoples who
have in recent decades performed miracles in soil reclama-
tion, in the rebuilding of their lands and peoples, and in
advancing popular education and democratic ideals. Nor can
we as Americans forget what our country has already done
for the world and what it may yet do. The Pilgrim Fathers,
in their day, and many of our most representative men since
then, all conceived of America as God's gift to humanity.
President Wilson spoke with deep conviction of America's
mission. Perhaps Mr. Wilson had learned to speak this way
because he was a constant reader of the Bible. Well then,
let us teach all peoples that they are all chosen, and that
each has a mission for all. I should prefer such an effort to
that of boasting of our election.
52- tbe words of
CHURCH AND DEMOCRACY
Democracy in any sphere is a serious undertaking. It sub-
stitutes self -restraint for external restraint. It is more difficult
to maintain than to achieve. It demands continuous sacrifice
by the individual and more exigent obedience to the moral
law than any other form of government. Success in any
democratic undertaking must proceed from the individual.
It is possible only where the process of perfecting the indi-
vidual is pursued. His development is attained mainly in the
processes of common living. Hence the industrial struggle
is essentially an affair of the Church and is its imperative
task.
BENJAMIN V. COHEN
On questions of international law consult Ben Cohen. If
he cannot give you the answers they are probably not avail-
able.
COLLECTIVE BARGAINING
Since the adoption of the federal constitution, and nota-
bly within the last fifty years, we have passed through an
economic and social revolution which affected the life of the
people more fundamentally than any political revolution
known to history. Widespread substitution of machinery
for hand labor (thus multiplying a hundredfold man's pro-
ductivity), and the annihilation of space through steam and
electricity, have wrought changes in the conditions of life
which are in many respects greater than those which had
occurred in civilized countries during thousands of years
preceding. The end was put to legalized human slavery an
institution which had existed since the dawn of history. But
of vastly greater influence upon the lives of the great major-
ity of all civilized peoples was the possibility which inven-
tion and discovery created of emancipating women and of
liberating men called free from the excessive toil thereto-
Justice Brandeis * 5 3
fore required to secure food, clothing and shelter. Yet, while
invention and discovery created the possibility of releasing
men and women from the thralldom of drudgery, there actu-
ally came, with the introduction of the factory system and
the development of the business corporation, new dangers
to liberty. Large publicly owned corporations replaced small
privately owned concerns. Ownership of the instruments of
production passed from the workman to the employer. In-
dividual personal relations between the proprietor and his
help ceased. The individual contract of service lost its char-
acter, because of the inequality in position between em-
ployer and employee. The group relation of employee ta
employer with collective bargaining became common, for it
was essential to the workers' protection.
[70] It is almost inconceivable to my mind that a corpo-
ration with powers so concentrated as the Steel Corporation
could get to a point where it would be willing to treat with
the employees on equal terms. And unless they treat on
equal terms then there is no such thing as democratization.
The treatment on equal terms with them involves not
merely the making of a contract; it must develop into a con-
tinuing relation. The making of a contract with a union is
a long step. It is collective bargaininga great advance. But
it is only the first step. In order that collective bargaining
should result in industrial democracy it must go further and
create practically an industrial governmenta relation be-
tween employer and employee where the problems as they
arise from day to day, or from month to month, or from
year to year, may come up for consideration and solution
as they come up in our political government.
In that way conditions are created best adapted to secur-
ing proper consideration of any question arising. The repre-
sentative of each party is heard and strives to advance the
54* the words of
interest he represents. It is the conflict of these opposing
forces which produces the contract ultimately. But ade-
quately to solve the trade problems there must be some
machinery which will deal with these problems as they arise
from day to day. You must create something akin to a gov-
ernment of the trade before you reach a real approach to
democratization. You must create a relation of employer
and employee similar to that which exists in the trade under
the protocol with the preferential union shop. 37
*
The question here is not so much the question whether
the number of cents per hour that this miserable creature
receives is a little more or a little less. Whether it is enough,
none of us are competent to determine. What we are com-
petent to determine, sitting right here, as American citizens,
is whether any men in the United States, be they directors
of the Steel Corporation or anyone else, are entitled and
can safely determine the conditions under which a large
portion of the American [workmen] shall live; whether it is
not absolutely essential to fairness, for results in an Ameri-
can democracy, to say that the great mass of working people
should have an opportunity to combine, and by their collec-
tive bargaining secure for themselves what may be a fair
return for their labor. There is the fundamental question,
and there is the question which is at the bottom of this situ-
ation. The denial of that right of collective bargaining is an
explanation of the miserable condition of the workingrnen
in the steel industry.
COMMON PEOPLE
This investigation [Ballinger Case] has been referred to as
a struggle for conservation, a struggle against the special in-
terests. It is that: but it is far more. In its essence, it is the
37 See also Employer and Employee.
Justice TZrandeis 55
struggle for democracy, the struggle of the small man against
the overpowering influence of the big; politically as well as
financially, the struggle to establish the right of every Amer-
ican to equal justice in the public service as well as in the
courts, that no official is so highly stationed that he may
trample ruthlessly and unjustly upon even the humblest
American citizen. The cause of Glavis is the cause of the
common people, and more especially the cause of the hun-
dreds of thousands of government officials.
COMPETITION 38
Undoubtedly competition involves waste. What human
activity does not? The wastes of democracy are among the
greatest obvious wastes, but we have compensations in de-
mocracy which far outweigh that waste and make it more
efficient than absolutism. So it is with competition. The
waste is relatively insignificant. 39 There are wastes of compe-
tition which do not develop, but kill. These the law can and
should eliminate, by regulating competition.
*
The history of combinations has shown that what one
may do with impunity, may have intolerable results when
done by several in cooperation. Similarly what approxi-
mately equal individual traders may do in honorable rivalry
may result in grave injustice and public injury, if done by a
great corporation in a particular field of business which it is
able to dominate. In other words, a method of competition
fair among equals may be very unfair if applied where
there is inequality of resources.
*
[75] Unrestricted competition, with its abuses and ex-
cesses, leads to monopoly, because these abuses and excesses
38 See also Regulated Competition, Sherman Law.
39 Repeated under Democracy.
56- the words of
prevent competition from functioning properly as a regu-
lator of business. Competition proper is beneficent, because
it acts as an incentive to the securing of better quality or
lower cost. It operates also as a repressive of greed, keeping
within bounds the natural inclination to exact the largest
profit obtainable. Unfair and oppressive competition defeats
those purposes. It prevents the natural development which
should attend rivalry and which gives success to those who
contribute most to the community by their development of
their own business and the exercise of moderation in the
.exaction of profits. It substitutes devious and corrupt meth-
ods for honest rivalry and seeks to win, not by superior
methods, but by force. Its purpose is not to excel, but to
destroy.
#
Some people believe that the existing conditions threaten
-even the stability of the capitalistic system. Economists are
searching for the causes of this disorder and are re-examin-
ing the basis of our industrial structure. Most of them real-
ize that failure to distribute widely the profits of industry
has been a prime cause of our present plight. But rightly or
wrongly, many persons think that one of the major contrib-
uting causes has been unbridled competition.
No system of regulation can safely be substituted for the
operation of individual liberty as expressed in competition.
It would be like attempting to substitute a regulated mon-
.archy for a republic.
It seems self-evident not only when you consider the dif-
ferent forms of methods of transportation, like railroad as
against water-carrier or railroad as against trolley, but it is
equally self-evident when you are considering what ought
Justice TSrandeis * 5 7
to be the competition between the different members or
concerns in the same class. The one that can do it the best
and usually that means the one that can do it the cheap-
estought to perform the service.
COMPETITION FROM WITHIN
Every business requires for its business health the me-*
mento mori of competition from without. It requires like-
wise a certain competition from within, which can exist
only where the ownership and management, on the one
hand, and the employees, on the other, shall each be alert,
hopeful, self-respecting, and free to work out for themselves
the best conceivable conditions.
CONCENTRATION
[80] I doubt whether anybody who is himself engaged in
any important business has time to be a director in more
than one large corporation. If he seeks to know about the
affairs of that one corporation as much as he should know,
not only in the interest of the stockholders, but in the inter-
est of the community, he will have a field for study that will
certainly occupy all the time that he has. 40
CONCRETE PROBLEMS
As a whole I have not got as much from books as I have
from tackling concrete problems. I have generally run up
against a problem, have painfully tried to think it out, with
a measure of success, and have then read a book and found
to my surprise that some other chap was before me.
CONSERVATION
Conservation, in its very essence, is preserving things pub-
lic for the people, preserving them so that the people may
have them. To accomplish this is the aim of our Republic.
It is the aim of our great democracy that men shall, so far
40 Repeated under Monopoly.
58- the words of
as humanly possible, have equal opportunities, and that the
differences in opportunities to which men have been subject
elsewhere shall not prevail here. 41
CONSERVATISM
True conservatism involves progress. . . . Unless our
financial leaders are capable of progress, the institutions
which they are trying to conserve will lose their foundation.
CONSTITUTION
The federal constitution . . . perhaps the greatest of
human experiments. 42
CONTROL AND COOPERATION
[85] The citizen in a successful democracy must not only
have education, he must be free. Men are not free if de-
pendent industrially upon the arbitrary will of another. In-
dustrial liberty on the part of the worker cannot, therefore,
exist if there be overweening industrial power. Some curb
must be placed upon capitalistic combination. Nor will even
this curb be effective unless the workers cooperate, as in
trade unions. Control and cooperation are both essential to
industrial liberty.
COOPERATIVE MOVEMENT
Farmers, workingmen, and clerks are learning to use their
little capital and their savings to help one another instead of
turning over their money to the great bankers for safekeep-
ing, and to be themselves exploited. And may we not expect
that when the cooperative movement develops in America,
merchants and manufacturers will learn from farmers and
workingmen how to help themselves by helping one an-
other, and thus join in attaining the New Freedom for all?
When merchants and manufacturers learn this lesson,
41 See also American Ideals.
42 Repeated under Experimentation.
Justice "Brandeis 59
money kings will lose subjects, and swollen fortunes may
shrink; but industries will flourish, because the faculties of
men will be liberated and developed.
CORPORATION LAWYER
Instead of holding a position of independence, between
the wealthy and the people, prepared to curb the excesses of
either, able lawyers have, to a large extent, allowed them-
selves to become adjuncts of great corporations and have
neglected the obligation to use their powers for the protec-
tion of the people. We hear much of the "corporation law-
yer," and far too little of the "people's lawyer/' The great
opportunity of the American Bar is and will be to stand
again as it did in the past, ready to protect also the interests
of the people. 43
COURTS AND THE PEOPLE
I believe that the courts and the people have been too far
apart. There is no subject so complex that the people can-
not be interested in it and made to see the truth about it if
pains enough be taken; and I believe that a common agree-
ment of public sentiment should influence the court's deci-
sion on many a question.
CUTTHROAT COMPETITION
Monopoly is the natural outcome of cutthroat competi-
tion.
DANGERS TO DEMOCRACY
[90] Many dangers to democracy ... are inherent in
these huge aggregations. 44
DECEPTION
The breaches of trust committed or permitted by men of
high financial reputation, the disclosure of the payment of
43 See also Lawyers' Education, Legal Profession.
44 Repeated under Monopoly.
50* the words of
exorbitant salaries and commissions, the illegal participation
in syndicate profits, the persistent perversion of sacred trust
funds to political purposes, the cooperation of the large
New York companies to control the legislatures of the coun-
trythese disclosures are indeed distressing; but the practice
of deliberate and persistent deception of the public which
the testimony discloses, though less dramatic, is even more
serious. Talleyrand said, "Language was made to conceal
thought/ 7 George W. Perkins would teach us that "Book-
keeping was made to conceal facts."
DELICATE OPERATION
To exercise a sound judgment in the difficult affairs of
business is ? at best, a delicate operation. And no man can
successfully perform that function whose mind is diverted,
however innocently, from the study of: "What is best in the
long run for the company of which I am a director?"
DE MAMD
Many labor leaders have regarded demand as static, as
something fixed. They have therefore assumed that if there
is a hundred per cent to divide, it will last longer if we each
do less, and it will go further. That I believe to be absolutely
unsound, as shown by experience. There is no fixed demand.
Demand is capable of almost any degree of expansion. It is
partly this unfortunate lack of confidence in employers, as
a whole, and partly a failure to recognize the results of eco-
nomic experience, to which the tendency of many labor
leaders to restrict production by the individual worker is
due.
LEWIS N. DEMBITZ
To those of my generation, your father [Lewis N. Dem-
bitz] was a living university. With him, life was unending
intellectual ferment. He grappled eagerly with the most diffi-
cult problems in mathematics and the sciences, in eco-
Justice "Brandeis 6 1
nomics, government and politics. In the diversity of his
intellectual interests, in his longing to discover truths, in
his pleasure in argumentation and the process of thinking,
he reminded one of the Athenians. He loved books as a
vehicle of knowledge and an inciter to thought; he made his
love contagious.
It is appropriate that his influence should be remembered
in the library where he would have worked, and is in part
the fruit of his influence. A collection of books is the
memorial for which he would have cared most. And the col-
lection which tells of Palestine's rebirth seems the most
appropriate. For the deepest of his studies were those allied
to the Jewish religion. He was orthodox. He observed the
law. But, he was not satisfied with merely observing it. He
sought to understand the law in order to find its reason; he
studied deeply into the history of the Jewish people. His
was not the drive of intellectual curiosity into the realm of
dead knowledge. He recognized in the past the mirror of the
future; a future which would be a noble and glorious one
for his people. It was natural that he should have been
among the first in America to support Herzl in his effort to
build a new Palestine.
DEMOCRACY
[95] Democracy means not merely, I had almost said not
so much, the rights of the whole people, as the duties of
the whole people.
*
We need democracy at all times no matter what the
system is under which we work.
*
The wastes of democracy are among the greatest obvious
wastes, but we have compensations in democracy which far
outweigh that waste, and make it more efficient than abso-
62* the words of
lutism. So it is with competition. Incentive and develop-
ment which are incident to the freer system of business
result in so much greater achievement that the waste is
relatively insignificant. 45 The margin between that which
men naturally do, and that which they can do, is so great
that a system which urges men on to action and develops
individual enterprise and initiative is preferable, in spite of
the wastes that necessarily attend that process.
DEMOCRACY AND ARISTOCRACY
Democracy rests upon two pillars; one, the principle that
all men are equally entitled to life, liberty and the pursuit
of happiness; and the other, the conviction that such equal
opportunity will most advance civilization. Aristocracy, on
the other hand, denies both these postulates. It rests upon
the principle of the superman. It willingly subordinates the
many to the few, and seeks to justify sacrificing the indi-
vidual by insisting that civilization will be advanced by such
sacrifices. 46
DEMOCRATIC IDEALS
Democratic ideals cannot be attained by the mentally un-
developed. In a government where every one is part sover-
eign, every one should be competent, if not to govern at
least to understand the problems of government; and to this
end education is an essential. 47
[100] Democratic ideals can be attained only where those
who govern exercise their power not by alleged divine right
or inheritance, but by force of character and intelligence. 48
45 See Competition.
46 See also Educational Standard, Education of Electorate.
47 Repeated under Jews and Democracy.
48 Repeated under Character and Intelligence, Jews and Democracy.
Justice "Brandeis * 63
*
Our great beneficent experiment in democracy will fail
unless the people, our rulers, are developed in character and
intelligence. 49
DEMOCRATIC METHODS
Democratic methods are necessarily slow and often seem
unreasonable. And the fact that our instruments are man
with his weaknesses and defects, is at times exasperating.
DEPRE CIATION
There is no regularity in the development of deprecia-
tion. It does not proceed in accordance with any mathe-
matical law. There is nothing in business experience or in
the training of experts, which enables man to say to what
extent service life will be impaired by the operations of a
single year, or of a series of years less than the service life.
DESPOTISM
There is no way in which to safeguard people from des-
potism except to prevent despotism. 5 "
, 50
[105] Despotism, be it financial or political, is vulnerable,
unless it is believed to rest upon a moral sanction. 51
DIFFERENTIATION NOT UNIFORMITY
In differentiation, not in uniformity, lies the path of
progress. 52
49 Repeated under Leisure.
50 Repeated under Monopoly,
si See Bankers' Ethics.
52 See America.
64' the words of
WILLIAM O, DOUGLAS
Justice Douglas will leave his mark on the Court. I am
very much pleased with my successor. He would have been
my own choice. 53
DUTIES
The greatest progress will perhaps be made if all of you
can give larger thought to your duties than to your rights.
DUTY
Duty must be accepted as the dominant conception in
life.
DUTY TO THE COMMUNITY
[110] All rights are derived from the purposes of the
society in which they exist; above all rights rises duty to
the community.
EARLY NEW ENGLANDERS
The early New Englanders appreciated fully that educa-
tion is an essential of potential equality. The founding of
their common school system was coincident with the found-
ing of the colonies; and even the establishment of institu-
tions for higher education did not lag far behind. Harvard
College was founded but six years after the first settlement
of Boston. 54
EDUCATED JEW
The educated descendants of a people which in its in-
fancy cast aside the Golden Calf and put its faith in the
invisible God cannot worthily in its maturity worship
worldly distinction and things material.
53 I am not sure about the last sentence. The Justice may have said
"No other appointee or successor would have pleased me as much."
54 Repeated under Jews and Democracy.
Justice Tlrandeis 65
EDUCATION
Education must continue throughout life.
EDUCATIONAL ENDOWMENTS
I have, and I think many must have, a grave apprehension
as to some of the great educational endowments of the
so-called private universities in contrast with the State uni-
versities. I think we are fortunate in having in this country
both the one and the other; and that other foundations, if
they are not too large, may be very beneficial; provided
always that there are other forces in governmental agencies
which can counteract them. Still I cannot help feeling a cer-
tain apprehension as to later results of these foundations.
EDUCATIONAL STANDARD 55
[115] The intellectual development of citizens may not
be allowed to end at fourteen. With most people whose
minds have really developed, the age of fourteen is rather
the beginning than the end of the educational period. The
educational standard required of a democracy is obviously
high. The citizen should be able to comprehend among
other things the many great and difficult problems of in-
dustry, commerce and finance, which with us necessarily
become political questions. He must learn about men as
well as things.
EDUCATION OF ELECTORATE 55
I am unwavering in my belief in democracy of the old
representative type, when the representative was to exercise
his judgment and discretion and not merely voice the will
of the electorate. The trouble with our democracy is that
we have not been willing to pay the price that is, educate
the electorate. That must be a continuous process not a
quadrennial or annual campaign. And it must involve a
much wider participation in government. I think consider-
55 See also Democracy and Aristocracy.
66* the words of
ation of governmental problems can be made for a large
section of the people the most alluring of occupations. And
there will be time for this when we have the five-day week
and six-hour day.
EFFICIENCY 56
Efficiency and economy imply employment of the right
instrument and material as well as their use in the right
manner. To use a machine, after a much better and more
economical one has become available, is as inefficient as
to use two men to operate an efficient machine when the
work could be performed equally well by one at half the
labor cost.
The world's demand for efficiency is so great and the
supply so small, that the price of efficiency is high in every
field of human activity.
While a business may be too small to be efficient, effi-
ciency does not grow indefinitely with increasing size. There
is in every line of business a unit of greatest efficiency. What
the size of that unit is cannot be determined in advance by
a general rule. It will vary in different lines of business and
with different concerns in the same line. It will vary with the
same concern at different times because of different condi-
tions. What the most efficient size is can be learned defi-
nitely only by experience. The unit of greatest efficiency is
reached when the disadvantages of size counterbalance the
advantages. The unit of greatest efficiency is exceeded when
the disadvantages of size outweigh the advantages. For a
unit of business may be too large to be efficient as well as
56 See also Interlocking Directorates, Monopoly and Efficiency,
Scientific Management.
Justice "Brandeis 6 7
too small. And in no American industry is monopoly an
essential condition of the greatest efficiency.
*
[120] Real efficiency in any business in which conditions
are ever changing must ultimately depend, in large measure,
upon the correctness of the judgment exercised, almost
from day to day, on the important problems as they arise.
EFFICIENCY AND SOCIAL IDEALS
Efficiency is the hope of democracy. Efficiency means
greater production with less effort and at less cost, through
the elimination of unnecessary waste, human and material.
How else can we hope to attain our social ideals?
The "right to life" guaranteed by our Constitution is now
being interpreted according to demands of social justice and
of democracy as the right to live, and not merely to exist.
In order to live men must have the opportunity of develop-
ing their faculties; and they must live under conditions in
which their faculties may develop naturally and healthily.
In the first place, there must be abolition of child labor,
shorter hours of labor, and regular days of rest, so that men
and women may conserve health, may fit themselves to be
citizens of a free country, and may perform their duties
as citizens. In other words, men and women must have
leisure, which the Athenians called "freedom" or liberty.
In the second place, the earnings of men and women must
be greater, so that they may live under conditions condu-
cive to health and to mental and moral development
Our American ideals cannot be attained unless an end is
put to the misery due to poverty. 57
These demands for shorter working time, for higher earn-
ings and for better conditions cannot conceivably be met
unless the productivity of man is increased. No mere re-
57 See American Ideals.
68" the words of
distribution of the profits of industry could greatly improve
the condition of the working classes. Indeed, the principal
gain that can be expected from any such redistribution of
profits is that it may remove the existing sense of injustice
and discontent^ which are the greatest obstacles to efficiency.
E F FICIENCY ' S TEST
The real test of efficiency comes when success has to be
struggled for.
ELIMINATION OF WASTE
I believe all intelligent and enlightened thinkers will
recognize, that the only way permanently and appreciably
to better the condition of labor, is to increase productivity
and to eliminate the waste. That is what scientific manage-
ment is. It means merely getting more with less effort. It
means stopping all waste effort either in the exertion of the
individuals or in goods. Just how you are going to apply the
principle is a matter of detail. It is most important that it
shall be applied democratically. It cannot be successfully ap-
plied otherwise in the long run; that is, both employer and
employee must come to recognize the fact that the elimina-
tion of waste is beneficial to both sides and that they must
cooperate to produce the best results and the most effective
methods of production. 58
EMERSON
I have been indulging in Emerson alsoand can con-
scientiously say that my admiration for him is on the in-
crease. I have read a few sentences of his, which are alone
enough to make the man immortal.
EMPLOYER AND EMPLOYEE 59
[125] Don't assume that the interests of employer and
employee are necessarily hostilethat what is good for one
58 Repeated under Employer and Employee.
59 See also Collective Bargaining, Unrestricted Power.
Justice Urandeis 69
is necessarily bad for the other. The opposite is more apt
to be the case. While they have different interests, they are
likely to prosper or suffer together.
*
Both labor and employers should bear constantly in mind
that each is his brother's keeper; that every employer is
injured by any single employer who does labor a wrong;
and that every laboring man and every union is injured by
every individual unionist who does an employer wrong. The
influence of a single wrongful act by one who can be classi-
fied, is tremendous. It affects every other member of the
class. When an employer acts improperly toward his em-
ployees, it is the business of other employers to see that
such conduct is prevented, for his wrong will injure them.
And in the same way any lack of fairness and any act of
lawlessness on the part of labor is certain to injure other
workers and the unions as a whole, and the individual mem-
bers of labor unions with employers. 60
Our employers can no more afford to be absolute masters
of their employees than they could afford to submit to the
mastery of their employees. 61
*
Nine-tenths of the serious controversies which arise in life
result from misunderstanding, result from one man not
knowing the facts which to the other man seem important,
or otherwise failing to appreciate his point of view. A prop-
erly conducted conference involves a frank disclosure of
such facts patient, careful argument, willingness to listen
and to consider. 62
60 See also Unions.
61 Repeated under Industrial Democracy.
62 Repeated under Proper Conferences, Serious Controversies.
70 * the words of
Bluff and bluster have no place there. The spirit must be,
"Come, let us reason together/ 7 Such a conference is im-
possible where the employer clings to the archaic belief
commonly expressed in the words, "This is my business,
and I will run it as I please/' It is impossible where the
labor representative, swaggering in his power to inflict in-
jury by strike and boycott, is seeking an unfair advantage
of the employers, or would seek to maintain even a proper
position by improper means. Such conferences will succeed
only if employer and employee recognize that, even if there
be no so-called system of profit-sharing, they are in a most
important sense partners, and that each is entitled to a
patient hearing, with a mind as open as the prejudice of
self-interest permits. 63
*
Employer and employee must come to recognize the fact
that the elimination of waste is beneficial to both sides and
that they must cooperate to produce the best results and
the most effective methods of production. 64
EMPLOYERS AND UNIONS
[130] The employers' refusal to deal with a union is ordi-
narily due to erroneous reasoning or false sentiment. The
man who refuses to deal with the union acts ordinarily from
a good motive. He is impressed with "union dictation." He
is apt to think "this is my business and the American has
the right of liberty of contract/' He honestly believes that
he is standing up for a high principle and is willing often
to run the risk of having his business ruined rather than
abandon that principle. They have not thought out clearly
enough that liberty means exercising one's rights consist-
ently with a like exercise of rights by other people; that
liberty is distinguished from license in that it is subject to
63 Repeated under Proper Conferences.
* 4 See Elimination of Waste.
Justice TLrandeis 71
certain restrictions and that no one can expect to secure
liberty in the sense in which we recognize it in America
without having his rights curtailed in those respects in
which it is necessary to limit them in the general public
interest. 65 The failure of many employers to recognize these
simple truths is a potent reason why employers have not
been willing to deal with unions. I think our employers, as
a rule, are kind-hearted; they mean to do right; they mean
to be just; and there is no difference between the men who
have fought the hardest against labor unions and those who
have yielded to and dealt with labor unions in that respect,
except that the former have not had that education which
comes from actual active cooperation with unions in the
solution of these problems. 66
I should say to those employers who stand for the open
shop, that they ought to recognize that it is for their interests
as well as that of the community that unions should be
powerful and responsible; that it is to their interests to build
up the unions, to aid as far as they can in making them
stronger, and to create conditions under which the unions
shall be led by the ablest and most experienced men. A large
part of all union activity today, and in the past, has been
devoted to the struggle for existence; and that fact accounts
also for a large part of union excesses. As nearly as possible
union existence should be assured so that the efforts of the
leaders might be devoted to solving the fundamental and
difficult problems of discipline and organization, and the
working out of other problems of the trades. 67
ENGLAND
England 1 is nearer civilization than any other country.
That it is nearer democracy seems clear. As I watch events
65 Repeated under Liberty. 66 See also Unions. e7 See also Unions.
72 the words of
from day to day I am ever more impressed with the existence
of a potent public opinionexpressing itself manfully and
with much immediate effect. Our own machinery referen-
dum, initiative, primary elections, and elective officials
galore is a miserable substitute for the alert, intelligent
watchfulness which is reflected generally in the press and
which finds, in the interrogations in the House of Commons
and in letters to the Times, the means of uncovering wrong
action before it has become irremediable or has ceased to
be of moment.
ENLIGHTENED UNSELFISHNESS
We ought to develop enlightened unselfishness, as a sub-
stitute for the old so-called enlightened selfishness; and
enlightened unselfishness would give us all a great deal more
than we have.
E PLURIBUS UNUM
E pluribus unumOut of many one was the motto
adopted by the founders of the Republic when they formed
a union of the thirteen states. To these we have added,
from time to time, thirty-five more. The founders were con-
vinced, as we are, that a strong nation could be built through
federation. They were also convinced, as we are, that in
America, under a free government, many peoples would
make one nation. Throughout all these years we have ad-
mitted to our country and to citizenship immigrants from
the diverse lands of Europe. We had faith that thereby we
would best serve ourselves and mankind. This faith has been
justified. The United States has grown great. The immi-
grants and their immediate descendants have proved them-
selves as loyal as any citizens of the country. Liberty has
knit us closely together as Americans. 68 Note the common
devotion to our country's emblem expressed at the recent
68 Repeated under Liberty.
Justice "Brandeis -73
Flag Day celebration in New York by boys and girls repre-
senting more than twenty different nationalities warring
abroad.
EQUALITY OF OPPORTUNITY
[135] I have many opinions, but I am not a doctrinaire.
My habit of mind has been to move from one problem to
another, giving to each, while it is before me, my undivided
study. I am a Democrat, but I have laid most stress on the
little *d/ Give me a free field. Provide equality of oppor-
tunity and we attain the New Freedom. 69
EXCESSES
Excesses of competition lead to monopoly, as excesses of
liberty lead to absolutism. The extremes meet. 70
EXCESSES OF CAPITAL
The greatest factors making for communism, socialism,
or anarchy among a free people are the excesses of capital;
because, as Lincoln said of slavery, "Every drop of blood
drawn with the lash shall be requited by another drawn
with the sword." It is certain that among a free people
every excess of capital must in time be repaid by the exces-
sive demands of those who have not the capital. Every
act of injustice on the part of the rich will be met by another
act or many acts of injustice on the part of the people. 71
*
The immense corporate wealth will necessarily develop a
hostility from which much trouble will come to us unless
the excesses of capital are curbed, through the respect for
law, as the excesses of democracy were curbed seventy-five
years ago. 72
69 Repeated under New Freedom.
70 Repeated under Regulated Competition.
71 Repeated under People and Rich.
72 Repeated under Legal Profession.
74* the words of
EXISTING INSTITUTIONS
Seek for betterment within the broad lines of existing
institutions. Do so by attacking evil in situ; and proceed
from the individual to the general. Remember that progress
is necessarily slow; that remedies are necessarily tentative;
that because of varying conditions there must be much and
constant enquiry into facts . . . and much experimenta-
tion; and that always and everywhere the intellectual, moral
and spiritual development of those concerned will remain
an essential and the main factor in real betterment. 73
This development of the individual is, thus, both a neces-
sary means and the end sought For our objective is the mak-
ing of men and women who shall be free, self-respecting
members of a democracy and who shall be worthy of re-
spect. Improvement in material conditions of the worker
and ease are the incidents of better conditions valuable
mainly as they may ever increase opportunities for develop-
ment.
EXPERIMENTATION 74
[140] The people of the United States are now confronted
with an emergency more serious than war. Misery is wide-
spread, in a time, not of scarcity, but of overabundance.
The long-continued depression has brought unprecedented
unemployment, a catastrophic fall in commodity prices, and
a volume of economic losses which threatens our financial
institutions. Some people believe that the existing condi-
tions threaten even the stability of the capitalistic system.
Economists are searching for the causes of this disorder and
are re-examining the basis of our industrial structure. Busi-
ness men are seeking possible remedies. Most of them realize
that failure to distribute widely the profits of industry has
been a prime cause of our present plight. But, rightly or
7S Repeated under Main Factor in Social Betterment.
7 * See also United States Supreme Court.
Justice "Brandeis * 7 5
wrongly, many persons think that one of the major con-
tributing causes has been unbridled competition. Increas-
ingly, doubt is expressed whether it is economically wise, or
morally right, that men should be permitted to add to the
producing facilities of an industry which is already suffering
from overcapacity. In justification of that doubt, men point
to the excess capacity of our productive facilities resulting
from their vast expansion without corresponding increase
in the consumptive capacity of the people. They assert that
through improved methods of manufacture, made possible
by advances in science and invention and vast accumula-
tion of capital, our industries had become capable of pro-
ducing from 30 to 100 per cent more than was consumed
even in days of vaunted prosperity; and that the present
capacity will, for a long time, exceed the needs of business.
All agree that irregularity in employment the greatest of
our evils cannot be overcome unless production and con-
sumption are more nearly balanced. 75 Many insist there
must be some form of economic control. There are plans
for proration. There are many proposals for stabilization.
And some thoughtful men of wide business experience insist
that all projects for stabilization and proration must prove
futile unless, in some way, the equivalent of the certificate
of public convenience and necessity is made a prerequisite
to embarking new capital in an industry in which the
capacity already exceeds the production schedules.
Whether that view is sound nobody knows. The objec-
tions to the proposal are obvious and grave. The remedy
might bring evils worse than the present disease. The ob-
stacles to success seem insuperable. The economic and
social sciences are largely uncharted seas. 76 We have been
none too successful in the modest essays in economic con-
trol already entered upon. The new proposal involves a vast
75 Repeated under Irregularity of Employment.
76 Repeated under Uncharted Seas.
76 the words of
extension of the area of control. Merely to acquire the
knowledge essential as a basis for the exercise of this multi-
tude of judgments would be a formidable task; and each
of the thousands of these judgments would call for some
measure of prophecy. Even more serious are the obstacles
to success inherent in the demands which execution of the
project would make upon human intelligence and upon the
character of men. Man is weak and his judgment is at best
fallible. 77
Yet the advances in the exact sciences and the achieve-
ments in invention remind us that the seemingly impossible
sometimes happens. There are many men now living who
were in the habit of using the age-old expression: "It is as
impossible as flying/' The discoveries in physical science,
the triumphs in invention, attest the value of the process of
trial and error. 78 In large measure, these advances have been
due to experimentation. In those fields experimentation has,
for two centuries, been not only free but encouraged. Some
people assert that our present plight is due, in part, to the
limitations set by courts upon experimentation in the fields
of social and economic science; and to the discouragement
to which proposals for betterment there have been subjected
otherwise. There must be power in the States and the nation
to remold, through experimentation, our economic prac-
tices and institutions to meet changing social and economic
needs. I cannot believe that the framers of the Fourteenth
Amendment, or the states which ratified it, intended to
deprive us of the power to correct the evils of technological
unemployment and excess productive capacity which have
attended progress in the useful arts.
To stay experimentation in things social and economic
is a grave responsibility. Denial of the right to experiment
may be fraught with serious consequences to the nation. It
77 Repeated under Man.
78 Repeated under Trial and Error.
Justice 'Brandeis * 7 7
is one of the happy incidents of the federal system that a
single courageous state may ? if its citizens choose, serve as
a laboratory; and try novel social and economic experiments
without risk to the rest of the country. This Court has the
power to prevent an experiment. We may strike down the
statute which embodies it on the ground that, in our
opinion, the measure is arbitrary, capricious, or unreason-
able. We have power to do this, because the due process
clause has been held by the Court applicable to matters of
substantive law as well as to matters of procedure. But,
in the exercise of this high power, we must be ever on our
guard, lest we erect our prejudices into legal principles. If
we would guide by the light of reason, we must let our
minds be bold. 79
*
Our social and industrial welfare demands that ample
scope should be given for social as well as mechanical in-
vention. It is a condition not only of progress but of con-
serving that which we have. Nothing could be more revolu-
tionary than to close the door to social experimentation.
The whole subject of woman's entry into industry is an
experiment. And surely the federal constitution itself per-
haps the greatest of human experiments 80 does not pro-
hibit such modest attempts as the woman's minimum-wage
act to reconcile the existing industrial system with our striv-
ing for social justice and the preservation of the race.
FACTS 81
Whether a measure relating to the public welfare is arbi-
trary or unreasonable, whether it has no substantial relation
to the end proposed, is obviously not to be determined by
assumptions or by a priori reasoning. The judgment should
79 See Boldness.
80 See Constitution.
81 See also Logic of Realities.
73* the words of
be based upon a consideration of relevant facts, actual or
possible Ex facto -jus oritur. That ancient rule must pre-
vail in order that we may have a system of living law. 82
*
The difficulty in deciding any question that comes up is
really the difficulty in getting at the facts.
#
What we must do in America is not to attack our judges,
but to educate them. All judges should be made to feel, as
many judges already do, that the things needed to protect
liberty are radically different from what they were fifty years
back. In some courts the judges' conceptions of their own
powers must also change. Some judges have decided a law
unconstitutional simply because they considered the law
unwise. These judges should be made to feel that they have
no such right, that their business is not to decide whether
the view taken by the legislature is a wise view, but whether
a body of men could reasonably hold such a view. In the
past the courts have reached their conclusions largely
deductively from preconceived notions and precedents. The
method I have tried to employ in arguing cases before them
has been inductive, reasoning from the facts. 83
FAILURE OF LIFE INSURANCE COMPANIES
[145] The causes of failure of life insurance companies
have been excessive expense, unsound investment, or dis-
honest management
FALSIFICATION OF BOOKS
In the case of common criminals flight is accepted as
confession of guilt. With financiers and business men falsifi-
cation of books has hitherto been considered the strongest
82 See also Lawyers' Training.
83 Repeated under Judges.
'Justice 'Brandeis 7P
evidence of guilt. Yet the falsification of the books of these
companies has been a persistent practice. Secret ledgers have
been opened in which were entered questionable invest-
ments and more questionable expenditures. Hundreds of
thousands spent "for legislative purposes" were charged up
in real estate accounts. So elaborate has been the system of
fraudulent entries that after months of investigation the
particular form of rascality embodied in the Equitable's
$685,000 Mercantile Trust Company, so-called "y e H w-
dog/ y account has not yet been detected.
FEAR, REPRESSION, HATE
Fear breeds repression . . . repression breeds hate . . -.
hate menaces stable government. 84
FINANCIAL DEPENDENCE
American democracy rests upon the basis of the free citi-
zen. 85 We accord (to the men) universal suffrage. We urge
strenuously upon every voter the duty of exercising this
right. We insist that the voter should exercise it in the inter-
est of others as well as of himself. We give thus to the citi-
zen the rights of a free man. We impose upon him a duty
that can be intrusted with safety only to free men. Politi-
cally, the American workingman is free so far as law can
make him so. But is he really free? Can any man be really
free who is constantly in danger of becoming dependent for
mere subsistence upon somebody and something else than
his own exertion and conduct? Men are not free while finan-
cially dependent upon the will of other individuals. Financial
dependence is consistent with freedom only where claim to
support rests upon right, and not upon favor. 8 '
. 86
84 Repeated under Freedom of Speech.
85 See American Democracy.
86 See also Greatest Danger, Industrial Absolutism, Industrial
Liberty.
SO * the words of
FINANCIAL INDEPENDENCE 87
There is no such thing as freedom for a man who under
normal conditions is not financially free. We must there-
fore find means to create in the individual financial inde-
pendence against sickness, accidents, unemployment, old
age, and the dread of leaving his family destitute, if he suf-
fer premature death. For we have become practically a world
of employees; and ? if a man is to have real freedom of con-
tract in dealing with his employer, he must be financially
independent of these ordinary contingencies. Unless we
protect him from this oppression, it is foolish to call him
free.
[150] If the American is to be fitted for his task as ruler,
he must have besides education and industrial liberty also
some degree of financial independence. Our existing indus-
trial system is converting an ever increasing percentage of
the population into wage-earners; and experience teaches
us that a large part of these become at some time financial
dependents, by reason of sickness, accident, invalidity, su-
perannuation, unemployment, or premature death of the
bread-winner of the family. Contingencies like these, which
are generally referred to in the individual case as misfor-
tunes, are now recognized as ordinary incidents in the life
of the wage-earner. The need of providing indemnity against
financial losses from such ordinary contingencies in the
workingrnan's life has become apparent and is already being
supplied in other countries.
FREEDOM OF SPEECH
Those who won our independence believed that the final
end of the State was to make men free to develop their
faculties, and that in its government the deliberative forces
87 See also Greatest Danger.
Justice TZrandeis Si
should prevail over the arbitrary. They valued liberty both
as an end and as a means. They believed liberty to be the
secret of happiness and courage to be the secret of liberty.
They believed that freedom to think as you will and to
speak as you think are means indispensable to the discovery
and spread of political truth; that without free speech and
assembly discussion would be futile; that with them, dis-
cussion affords ordinarily adequate protection against the
dissemination of noxious doctrine; that the greatest menace
to freedom is an inert people; 8B that public discussion is a
political duty; and that this should be a fundamental prin-
ciple of the American Government. They recognized the
risks to which all human institutions are subject. But they
knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to dis-
courage thought, hope, and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces
stable government; 89 that the path of safety lies in the
opportunity to discuss freely supposed grievances and pro-
posed remedies; and that the fitting remedy for evil counsels
is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by
law the argument of force in its worst form. 90 Recogniz-
ing the occasional tyrannies of governing majorities, they
amended the Constitution so that free speech and assembly
should be guaranteed.
Fear of serious injury cannot alone justify suppression of
free speech and assembly. Men feared witches and burnt
women. It is the function of speech to free men from the
bondage of irrational fears. 91 To justify suppression of free
speech there must be reasonable ground to fear that the
88 Repeated under Greatest Menace to Freedom.
89 See Fear, Repression, Hate.
90 See Argument of Force.
91 Repeated under Function of Speech.
$2* the words o j
serious evil will result if free speech is practiced. There must
be reasonable ground to believe that the danger appre-
hended is imminent. There must be reasonable ground
to believe that the evil to be prevented is a serious
one. Every denunciation of existing law tends in some
measure to increase the probability that there will be
violation of it. Condonation of a breach enhances the
probability. Expressions of approval add to the probability.
Propagation of the criminal state of mind by teaching
syndicalism increases it. Advocacy of law-breaking heightens
it still further. But even advocacy of violation, however
reprehensible morally, is not a justification for denying free
speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be
immediately acted on. The wide difference between advo-
cacy and incitement, between preparation and attempt, be-
tween assembling and conspiracy, must be borne in mind.
In order to support a finding of clear and present danger it
must be shown either that immediate serious violence was
to be expected or was advocated, or that the past conduct
furnished reason to believe that such advocacy was then
contemplated.
Those who won our independence by revolution were not
cowards. They did not fear political change. They did not
exalt order at the cost of liberty. To courageous, self-reliant
men, with confidence in the power of free and fearless rea-
soning applied through the processes of popular govern-
ment, no danger flowing from speech can be deemed clear
and present, unless the incidence of the evil apprehended is
so imminent that it may befall before there is opportunity
for full discussion. If there be time to expose through dis-
cussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more
speech, not enforced silence. Only an emergency can jus-
tify repression* Such must be the rule if authority is to be
justice 'Brandeis '83
reconciled with freedom. Such, in my opinion, is the com-
mand of the Constitution. It is therefore always open to
Americans to challenge a law abridging free speech and
assembly by showing that there was no emergency justify-
ing it.
Moreover, even imminent danger cannot justify resort to
prohibition of these functions essential to effective democ-
racy, unless the evil apprehended is relatively serious. Pro-
hibition of free speech and assembly is a measure so strin-
gent that it would be inappropriate as the means for avert-
ing a relatively trivial harm to society. A police measure may
be unconstitutional merely because the remedy, although
effective as means of protection, is unduly harsh or oppres-
sive. Thus, a State might, in the exercise of its police power,
make any trespass upon the land of another a crime, regard-
less of the results or of the intent or purpose of the tres-
passer. It might, also, punish an attempt, a conspiracy, or
an incitement to commit the trespass. But it is hardly con-
ceivable that this Court would hold constitutional a statute
which punished as a felony the mere voluntary assembly
with a society formed to teach that pedestrians had the
moral right to cross uninclosed, unposted, waste lands and
to advocate their doing so, even if there was imminent dan-
ger that advocacy would lead to a trespass. The fact that
speech is likely to result in some violence or in destruction
of property is not enough to justify its suppression. There
must be the probability of serious injury to the State. Among
free men, the deterrents ordinarily to be applied to prevent
crime are education and punishment for violations of the
law, not abridgment of the rights of free speech and
assembly.
*
The extent to which Congress may, under the Constitu-
tion, interfere with free speech, was . . . declared by a
unanimous Court to be this:
8 4 . the words of
"The question in every case is whether the words . . .
are used in such circumstances and are of such a nature
as to create a clear and present danger that they will
bring about the substantive evils that Congress has a
right to prevent. It is a question of proximity and
degree."
This is a rule of reason. Correctly applied, it will preserve
the right of free speech both from suppression by tyran-
nous, well-meaning majorities, and from abuse by irrespon-
sible, fanatical minorities. Like many other rules for human
conduct, it can be applied correctly only by the exercise of
good judgment; and to the exercise of good judgment calm-
ness is, in times of deep feeling and on subjects which excite
passion, as essential as fearlessness and honesty. 92 The ques-
tion whether in a particular instance the words spoken or
written fall within the permissible curtailment of free speech
is, under the rule enunciated by this Court, one of degree;
and because it is a question of degree the field in which the
jury may exercise its judgment is necessarily a wide one. But
its field is not unlimited. The trial provided for is one by
judge and jury, and the judge may not abdicate his function.
If the words were of such a nature and were used under
such circumstances that men, judging in calmness, could not
reasonably say that they created a clear and present danger,
that they would bring about the evil which Congress sought
and had a right to prevent, then it is the duty of the trial
judge to withdraw the case from the consideration of the
jury; and, if he fails to do so, it is the duty of the appellate
court to correct the error. . . .
The nature and possible effect of a writing cannot be
properly determined by culling here and there a sentence
and presenting it separated from the context. . . . Some-
times it is necessary to consider, in connection with it, other
92 See Calmness.
justice TSrandeis -85
evidence which may enlarge or otherwise control its mean-
ing, or which may show that it was circulated under circum-
stances which gave it a peculiar significance or effect. . . .
The jury which found men guilty for publishing news
items or editorials like those here in question must have
supposed it to be within their province to condemn men,
not merely for disloyal acts, but for a disloyal heart; pro-
vided only that the disloyal heart was evidenced by some
utterance. To prosecute men for such publications reminds
of the days when men were hanged for constructive treason.
And, indeed, the jury may well have believed from the
charge that the Espionage Act had in effect restored the
crime of constructive treason. To hold that such harmless
additions to or omissions from news items, and such impo-
tent expressions of editorial opinion, as were here shown,
can afford the basis even of a prosecution, will doubtless
discourage criticism of the policies of the Government. To
hold that such publications can be suppressed as false re-
ports, subjects to new perils the constitutional liberty of the
press, already seriously curtailed in practice under powers
assumed to have been conferred upon the postal authorities.
Nor will this grave danger end with the passing of the war.
The constitutional right of free speech has been declared
to be the same in peace and in war. In peace, too, men may
differ widely as to what loyalty to our country demands; and
an intolerant majority, swayed by passion or by fear, may be
prone in the future, as it has often been in the past, to stamp
as disloyal opinions with which it disagrees. Convictions
such as these, besides abridging freedom of speech, threaten
freedom of thought and of belief.
Full and free exercise of this right [to teach the truth as
he sees it] by the citizen is ordinarily also his duty; for its
exercise is more important to the Nation than it is to him-
8(5 . the words of
self. Like the course of the heavenly bodies, harmony in
national life is a resultant of the straggle between contend-
ing forces. 93 In frank expression of conflicting opinion lies
the greatest promise of wisdom in governmental action; and
in suppression lies ordinarily the greatest peril.
#
The right to speak freely concerning functions of the Fed-
eral Government is a privilege of immunity of every citizen
of the United States which, even before the adoption of the
Fourteenth Amendment, a State was powerless to curtail.
#
[155] Although the rights of free speech and assembly are
fundamental, they are not in their nature absolute. Their
exercise is subject to restriction, if the particular restriction
proposed is required in order to protect the State from de-
struction or from serious injury, political, economic, or
moral. That the necessity which is essential to a valid re-
striction does not exist unless speech would produce, or is
intended to produce, a clear and imminent danger of some
substantive evil which the State constitutionally may seek
to prevent has been settled.
*
The powers of the courts to strike down an offending law
are no less when the interests involved are not property
rights, but the fundamental personal rights of free speech
and assembly.
#
I am unable to assent to the suggestion in the opinion of
the Court that assembling with a political party, formed to
advocate the desirability of a proletarian revolution by mass
action at some date necessarily far in the future, is not a
right within the protection of the Fourteenth Amendment.
93 Repeated under Harmony in National Life.
Justice 'Brandeis 8 7
#
The fundamental right of free men to strive for better
conditions through new legislation and new institutions will
not be preserved, if efforts to secure it by argument to fellow
citizens may be construed as criminal incitement to disobey
the existing lawmerely because the argument presented
seems to those exercising the judicial power to be unfair in
its portrayal of existing evils, mistaken in its assumptions,
unsound in reasoning, or intemperate in language. No ob-
jections more serious than these can, in my opinion, reason-
ably be made to the arguments presented in The Price We
Pay.
FUNCTION OF SPEECH
It is the function of speech to free men from the bondage
of irrational fears. 94
GOD'S PRESENCE
[160] I do not understand what you mean by experiencing
God's presence. I have faced many trials, had to make grave
decisions, tasted of the sweet and bitter, was depressed and
elated, worked and studied, and thought and meditated. I
have lived through many a moment in which, according to
the faithful, God should have spoken and helped. But I can-
not say that he did or didn't. I sensed no power outside of
myself working along with me. Nor would I describe what
was going on in me as supernatural, irrational, or mysteri-
ous. I believe that I was reasoning through by concentrating
and recalling what good men had said and done before me.
To say that it was God who inspired me to give up my pri-
vate practice and fight for women's welfare and against mo-
nopolies is to employ language that, I repeat, I do not under-
stand. I have now and then come across plausible reasons
for the existence of God but never what I should call proof.
94 See Freedom of Speech.
88* the words o j
And definitely never have I met a man who spoke convinc-
ingly of experiencing God's presence.
GOD'S PURPOSE
In cross-examining a witness I tried to establish the truth
or falsity of what he was saying. I probed into his mind to
know what was going on there. But I should not say that my
efforts were altogether successful. There was always an area
of doubt, barred cells, that remained sealed off. How then
can I hope to read the Cosmic Mind, as you call it, or
divine its purpose?
GOOD BARGAIN
The old idea of a good bargain was a transaction in which
one man got the better of another. The new idea of a good
contract is a transaction which is good for both parties to it.
GOVERNMENT AS LAWBREAKER
Decency, security, and liberty alike demand that Govern-
ment officials shall be subjected to the same rules of conduct
that are commands to the citizen. In a government of law,
existence of the government will be imperiled if it fails to
observe the law scrupulously. Our Government is the po-
tent, the omnipresent teacher. For good or for ill, it teaches
the whole people by its example. Crime is contagious. If the
Government becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration of the
criminal law the end justifies the meansto declare that the
Government may commit crimes in order to secure the con-
viction of a private criminal would bring terrible retribu-
tion. Against that pernicious doctrine this Court should
resolutely set its face.
Justice ftrandeis 8 9
#
The Government may set decoys to entrap criminals. But
it may not provoke or create a crime and then punish the
criminal, its creature.
GOVERNMENT CONTROL
[165] I have no rigid social philosophy. I have been too
intense on concrete problems of practical justice. And yet
I can see that the tendency is steadily toward governmental
control. The Government must keep order not only physi-
cally but socially. In old times the law was meant to protect
each citizen from oppression by physical force. But we have
passed to a subtler civilization; from oppression by force we
have come to oppression in other ways. And the law must
still protect a man from the things that rob him of his free-
dom, whether the oppressing force be physical or of a
subtler kind. 95
GOVERNMENT EMPLOYEES
We want men to think. We want every man in the serv-
ice, of the three or four hundred thousand who are there,
to recognize that he is a part of the governing body, and
that on him rests responsibility within the limits of his
employment just as much as upon the man on top. They
cannot escape such responsibility. . . . They cannot be
worthy of the respect and admiration of the people unless
they add to the virtue of obedience some other virtues the
virtues of manliness, of truth, of courage, of willingness to
risk positions, of the willingness to risk criticisms, of the
willingness to risk the misunderstandings that so often come
when people do the heroic thing.
GOVERNMENT INTRUSION
Experience should teach us to be most on our guard to
protect liberty when the Government's purposes are benefi-
95 See also Law and Life, Law's Function, Lawyers* Special Obliga-
tion.
90* the words of
cent. Men born to freedom are naturally alert to repel inva-
sion of their liberty by evil-minded rulers. The greatest
dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding. 96
*
The makers of our Constitution undertook to secure con-
ditions favorable to the pursuit of happiness. They recog-
nized the significance of man's spiritual nature, of his feel-
ings, and of his intellect. They knew that only a part of the
pain, pleasure, and satisfactions of life are to be found in
material things. They sought to protect Americans in their
beliefs, their thoughts, their emotions, and their sensations.
They conferred, as against the Government, the right to be
let alone the most comprehensive of rights and the right
most valued by civilized men. To protect that right, every
unjustifiable intrusion by the Government upon the privacy
of the individual, whatever the means employed, must be
deemed a violation of the Fourth Amendment. And the use,
as evidence in a criminal proceeding, of facts ascertained by
such intrusion must be deemed a violation of the Fifth. 97
GREATEST DANGER
There cannot be liberty without financial independence,
and the greatest danger to the people of the United States
today is in becoming, as they are gradually more and more,
a class of employees. 98
GREATEST ECONOMIC MENACE
[170] The economic menace of past ages was the dead
hand y which gradually acquired a large part of all available
lands. The greatest economic menace of today is a very
96 Repeated under Liberty's Greatest Danger; see also Wire Tapping.
ST See also Wire Tapping.
98 See also Financial Dependence, Financial Independence, Indus-
trial Absolutism.
Justice 'Brandeis p 1
live hand, these great insurance companies which control
so large a part of our quick capital.
GREATEST GOOD OF GREATEST NUMBER
Here and there you will find a herored-blooded., and
courageous loving manhood more than wealth, place or
securitywho dared to fight for independence and won.
Here and there you may find the martyr, who resisted in
silence and suffered with resignation. But America, which
seeks "the greatest good of the greatest number/' cannot be
content with conditions that fit only the hero, the martyr
or the slave."
GREATEST MENACE TO FREEDOM
The greatest menace to freedom is an inert people, 1
GREATEST PROBLEM
The Greatest Problem before the American people in this
generation [is] the problem of reconciling our industrial sys-
tem with the political democracy in which we live.
GREAT PHYSICIANS
The great physicians are those who in addition to that
knowledge of therapeutics which is open to all, know not
merely the human body but the human mind and emotions,
so as to make themselves the proper diagnosisto know the
truth which their patients failed to disclose and who add to
this an influence over the patient which is apt to spring from
a real understanding of him. 2
HALF FREE AND HALF SLAVE
[175] We are confronted in the twentieth century, as we
were in the nineteenth century, with an irreconcilable con-
99 See America, American Ideals.
1 See Freedom of Speech.
2 Repeated under Lawyers' Knowledge.
92* the words of
flict. Our democracy cannot endure half free and half slave.
The essence of the trust is a combination of the capitalist,
by the capitalist, for the capitalist. 3
ALEXANDER HAMILTON
Hamilton was an apostle of the living law.
HARMONY IN NATIONAL LIFE
Like the course of the heavenly bodies, harmony in na-
tional life is a resultant of the struggle between contending
forces. 4
HEBREW LANGUAGE
Perhaps the most extraordinary achievement in Jewish
nationalism is the revival of the Hebrew language, making it
again a language for the common intercourse of men. The
Hebrew Tongue, called a dead language for so many cen-
turies, has, in the Jewish colonies and Jerusalem, become
again a living Mother Tongue. The effect of this common
language in unifying the Jews is of course great. For the Jews
of Palestine came literally from the lands of the earth, each
speaking, except for the use of Yiddish -or Spaniolish, the
language of the country from which he came, and each re-
maining almost a stranger to the others. But the effect of
the Renaissance of the Hebrew Tongue is far greater than
that of unifying the Jews. It is a potent factor in reviving
the essentially Jewish spirit.
*
It was no ordinary sense of piety that made Ben Jehuda
seek to introduce the Hebrew language. He recognized what
the leaders of other peoples seeking rebirth and independ-
ence have recognized that it is through the national lan-
guage, expressing the peoples' soul, that the national spirit
3 Repeated under Monopoly.
4 See Freedom of Speech.
Justice TSrandeis * 93
is aroused, and the national power restored. Despite the
prevalence of the English Tongue in Ireland, the revival of
Gaelic became one of the most important factors in the
movement which has just resulted in securing for the Irish
their long-coveted home rule. The revival of Flemish was a
potent factor in the rebirth of the Belgian people, who are
now giving such good account of themselves. And so it was
with the revival of Greek, of Bulgarian, and of Serbian.
THEODOR HERZL
[180] Among Theodor HerzFs contributions to our under-
standing of the Jewish problem are these:
FIRST: The recognition of the fundamental fact that the
Jews are a people one people.
SECOND: The recognition of the political truth that the
emancipation of the Jews can come only through them-
selves; that is, by democratic means.
HISTORY
History is not life. But since only life makes history the
union of the two is obvious.
HOME LIFE
With the improvement in home life, the tone of the
entire community is raised. 5
HOW HUMAN BEINGS IMPROVE
Human beings . . . can be miscd, and raised only, by
holding up before them that which is higher and that which
is better than they.
HUMAN NATURE
Human nature, like the inanimate, seeks the path of least
resistance. To think hard and persistently is painful. 6
5 Repeated under Short Workday.
6 Repeated under Thinking.
94* the words of
#
[185] The weakness of human nature prevents men from
being good judges of their own deservings. 7
#
Human nature is such that monopolies, however well in-
tentioned and however well regulated, inevitably become
oppressive, arbitrary, unprogressive and inefficient. 8
*
Human nature ... is never wholly cast down by the
misfortunes and frailties of our neighbors. 9
H UMAN TRUTH
Labor must have throughout an opportunity of testing
whether that which is recorded as a truth, is really a truth,
and whether it is the whole truth. Labor must not only be
convinced of the industrial truthswhich scientific manage-
ment is disclosing -but must be convinced that those truths
are consistent with what may be termed human truth. 10
IMMORTALITY OF THE S O U L n
I never read anything on the immortality of the soul, and
I admit having read but little on the subject, that convinced
me of its truth. What surprises me is that men should be
longing for an afterlife in which there would apparently be
nothing to do except to delight in heaven's wonders. For,
as the theologians have pictured the afterlife, man will be
there sine body and his soul will rejoin the Deity. If this is
so then intellectual pursuits will come to an end with bodily
exertions, for, as a part of the Deity, man will be in posses-
sion of all knowledge, leaving nothing to occupy him except
7 See Bankers' Power.
8 Repeated under Monopoly.
9 See Blighting Influence of Journalistic Gossip.
10 See also Labor's Share.
II See also Jews and Democracy.
justice TSrandeis * 95
some kind of spiritual enjoyment. But enjoyment, I thought,
was more pagan than Jewish or Christian.
INDIFFERENCE
[190] I do not consider indifference insuperable.
INDIVIDUALITY OF PEOPLES 12
Deeply imbedded in every nation and people is the desire
for full development the longing for self-expression. In the
past it has been generally assumed that the full development
of one people necessarily involved its domination over
others. Strong nations are apt to become convinced that by
such domination only does civilization advance. Strong na-
tions assume their own superiority, and come to believe that
they possess the divine right to subject other peoples to their
sway. Soon the belief in the existence of such a right be-
comes converted into a conviction that a duty exists to
enforce it. Wars of aggrandizement follow as a natural result
of this belief.
This attitude of nations and peoples is the exact correla-
tive of the position generally assumed by the strong in re-
spect to other individuals before democracy became a com-
mon possession. The struggles of the eighteenth and nine-
teenth centuries, both in peace and in war, were devoted
largely to overcoming that position as to individuals, to
establishing the equal right to development of every person,
and in making clear that equal opportunity for all involves
this necessary limitation: each man may develop himself so
far, but only so far as his doing so will not interfere with
the exercise of a like right by all others. Thus liberty has
come to mean the right to enjoy life, to acquire property,
to pursue happiness, in such manner that the exercise of
the right in each is consistent with the exercise of a like
12 See also Jewish Individuality, Liberalism and Anti-Jewish Prej-
udice, National Individuality.
96* the words of
right by every other of our fellow citizens. Liberty thus de-
fined underlies twentieth-century democracy. Liberty thus
defined exists in a large part of the western world. And even
where this equal right of all has not yet been accepted as a
political right, its ethical value is becoming recognized. 13
The movements of the last century have proved that
whole peoples have individuality no less marked than that
of the single person; that the individuality of a people is
irrepressible, and that internationalism which seeks the ob-
literation of nations or peoples is unattainable. 14 As democ-
racy rejects the proposal of the superman who shall rise
through sacrifice of the many and insists that the full devel-
opment of each individual is not only a right but a duty to
society; so the new nationalism proclaims the right and the
duty of each race or people to develop itself fully. . . .
No peace which is lasting can ever come until the nations,
great and small, accept the democratic principle that there
is and shall be no supernation, to rise through subjection of
others, and the truth that each people has in it something
of peculiar value which it can contribute to that civilization
for which we are all striving. And until that principle is
accepted, and that truth recognized, unrest must be unend-
ing. Whatever economic arrangement may be made, how-
ever perfect and comprehensive may become the machinery
for enforcing the treaties of the nations, those peoples who
are not accorded equality of opportunity for full develop-
ment will prove a source of irritation; injustice will bring its
inevitable penalty; and the peace of the world will be broken
again and again, as those little nations of the Balkans have
taught us in recent years.
Equal opportunity for all people as for all individuals
that is the essential of international as well as of national
justice upon which a peace which is to be permanent must
13 Repeated under Liberty.
14 Repeated under National Individuality,
Justice T$randeis * 9 7
rest. Unless that fundamental right is recognized and
granted universally, there will be discord and war in the
future, as there has been in the past.
INDIVIDUAL SUFFERING
We cannot cope with individual suffering unless we suc-
ceed in removing the cause of that suffering.
INDUSTRIAL ABSOLUTISM 15
The next generation must witness a continuing and ever-
increasing contest between those who have and those who
have not. The industrial world is in a state of ferment The
ferment is in the main peaceful, and, to a considerable
extent, silent; but there is felt today very widely the incon-
sistency in this condition of political democracy and indus-
trial absolutism. The people are beginning to doubt whether
in the long run democracy and absolutism can coexist in the
same community; beginning to doubt whether there is a
justification for the great inequalities in the distribution of
wealth, for the rapid creation of fortunes, more mysterious
than the deeds of Aladdin's lamp. The people have begun
to think; and they show evidences on all sides of a tendency
to act. 16
INDUSTRIAL DEMOCRACY
Unrest, to my mind, never can be removed and fortu-
nately never can be removed by mere improvement of the
physical and material condition of the workingman. If it
were possible we should run great risk of improving their
material condition and reducing their manhood. We must
bear in mind all the time that however much we may desire
material improvement and must desire it for the comfort of
the individual, that the United States is a democracy, and
that we must have, above all things, men. It is the develop-
15 See also Financial Dependence.
16 See also Monopoly.
98* the words of
ment of manhood to which any industrial and social system
should be directed. We Americans are committed not only
to social justice in the sense of avoiding things which bring
suffering and harm, like unjust distribution of wealth; but
we are committed primarily to democracy. The social justice
for which we are striving is an incident of our democracy,
not the main end. It is rather the result of democracy per-
haps its finest expression but it rests upon democracy,
which implies the rule by the people. 17 And therefore the
end for which we must strive is the attainment of rule by the
people, and that involves industrial democracy as well as
political democracy. That means that the problems of a trade
should no longer be the problems of the employer alone.
The problems of his business, and it is not the employer's
business alone, are the problems of all in it. The union can-
not shift upon the employer the responsibility for condi-
tions, nor can the employer insist upon determining, ac-
cording to his will the conditions which shall exist. The
problems which exist are the problems of the trade; they are
the problems of employer and employee. Profit sharing,
however liberal, cannot meet the situation. That would
merely mean dividing the profits of business. Such a division
may do harm or it might do good, dependent on how it is
applied.
There must be a division not only of profits, but a divi-
sion also of responsibilities. The employees must have the
opportunity of participating in the decisions as to what shall
be their condition and how the business shall be run. They
must learn also in sharing that responsibility that they must
bear, too, the suffering arising from grave mistakes, just as
the employer must. But the right to assist in making the
decisions, the right of making their own mistakes, if mis-
takes there must be, is a privilege which should not be de-
17 See American Ideals.
Justice TSrandeis 9 P
nied to labor. We must insist upon labor sharing the respon-
sibility for the result of the business. 18
#
[195] Prolonged peace and prosperity can rest only on the
foundation of industrial liberty. Industrial democracy should
ultimately attend political democracy. Industrial absolutism
is not merely impossible in this country at the present time,
but is most undesirable. Our employers can no more afford
to be absolute masters of their employees than they can
afford to submit to the mastery of their employees. 19
#
Liberty is the greatest developer. Herodotus tells us that
while the tyrants ruled, the Athenians were no better fight-
ers than their neighbors; but when freed, they immediately
surpassed all others. 20 If industrial democracy true cooper-
ationshould be substituted for industrial absolutism, there
would be no lack of industrial leaders.
*
All of our human experience shows that no one with abso-
lute power can be trusted to give it up even in part. That has
been the experience with political absolutism; it must prove
the same with industrial absolutism. Industrial democracy
will not come by gift. It has got to be won by those who
desire it.
INDUSTRIAL DEMOCRACY AND THINKING
One hundred years ago the civilized world did not believe
that it was possible that the people could rule themselves;
they did not believe that it was possible to have government
of the people, by the people, and for the people. America in
the last century proved that democracy is a success. 21
is See also Unrest.
19 See Employer and Employee.
20 Repeated under Liberty.
21 See America.
100- t b e words of
The civilized world today believes that in the industrial
world self-government is impossible; that we must adhere to
the system which we have known as the monarchical sys-
tem, the system of master and servant, or, as now more
politely called, employer and employee. It rests with this
century and perhaps with America to prove that as we have
in the political world shown what self-government can do,
we are to pursue the same lines in the industrial world.
And what will that involve? I take it: free thinking. In the
first place, of course, whether we have an institution mas-
tered by the employer and employee in the old form or in
the form of industrial democracy to which we look forward,
we shall have Obedience. But the obedience will be this: it
will be obedience to the laws which the people make for
themselves in a business, and not the laws which are made
for them and in the making of which they have no part.
That is the first difference between this industrial democ-
racy to which we look forward and the old monarchical
form.
In the next place, we have a condition in which these
laws are made for the benefit or mainly for the benefit of
those who make them, and that is, who do the work.
And in the third place, we have leaders of industry in-
stead of masters of industry or captains of industry.
Those are the great differences.
And how are they to be attained?
I take it, also, that there are three things essential. In the
first place, those who engage in the effort of freeing industry,
or becoming free, must note this: that in order not to have
someone as master, they must be master of themselves. That
is the first rule.
The second rule is: that when they work, they must work
with and for others, for the institution of which they are
a part.
The third rule is that they must think. Democracy is only
Justice "Brandeis -104
possible, industrial democracy, among people who think;
among people who are above the average intelligence. And
that thinking is not a heaven-bom thing, that intelligence
is not a gift that merely comes. It is a gift men make and
women make for themselves. It is earned, and it is earned
by effort. There is no effort, to my mind, that is comparable
in its qualities, that is so taxing to the individual, as to
think, to analyze fundamentally. 22
The brain is like the hand. It grows with using. 23
INDUSTRIAL INJUSTICE
The real fight today is against the inhuman, relentless
exercise of capitalistic power. First we had the struggle for
independence, and the second great struggle in our history
was to keep the nation whole and abolish slavery. The pres-
ent struggle in which we are engaged is for social and indus-
trial justice.
INDUSTRIAL LIBERTY 24
[200] Prolonged peace and prosperity can rest only upon
the foundation of industrial liberty. The peace which em-
ployers should seek is not the peace of fifty years ago, when
the employers were absolute masters of the situation. The
peace which the employers should seek is not the peace of
mediaeval guilds, with their numberless restrictions. Indus-
trial liberty must attend political liberty. The lead which
America takes in the industrial world is no doubt due to our
unbounded resources; but of these resources none are so
great as the spirit and the ability incident to a free people.
We lead the world industrially, not so much because the
resources of nature are unbounded, as because the faculties
and aspirations of men are comparatively unfettered,
22 Repeated under Thinking.
23 See Brain.
24 See also Financial Dependence.
102* the words of
*
"Man cannot live by bread alone." Men must have indus-
trial liberty as well as good wages.
Can this contradiction our grand political liberty and
this industrial slavery long coexist? Either political liberty
will be extinguished or industrial liberty must be restored.
You cannot have true American citizenship, you cannot
preserve political liberty, you cannot secure American stand-
ards of living unless some degree of industrial liberty accom-
panies it.
#
Industrial liberty must rest upon reasonableness. We gain
nothing by exchanging the tyranny of capital for the tyranny
of labor. Arbitrary demands must be met by determined
refusals, also at any cost.
[205] Industrial liberty, like civil liberty, must rest upon
the solid foundation of law. Disregard the law in either,
however good your motives, and you have anarchy.
Both liberty and democracy are seriously threatened by
the growth of big business. Today the need is not so much
for freedom from physical restraint as for freedom from
economic oppression.
Already the displacement of the small independent busi-
ness man by the huge corporation with its myriad of em-
ployees, its absentee ownership, and its financier control,
presents a grave danger to our democracy. The social loss is
great; and there is no economic gain.
Justice "Brandeis * 1 3
Political liberty, then, is not enough; it must be attended
by economic and industrial liberty. 25
INTELLIGENT SELF-INTEREST
To reduce the price of gas we need not only honesty but
also skill, energy and initiative. And this may be best secured
by following those lines of intelligent self-interest upon
which the remarkable industrial advance of America has
proceeded.
INTERLOCKING DIRECTORATES 26
There is another reason why interlocking directorates
must be abolished: namely, the demands of efficiency. Ob-
viously the only justification for the director's existence is
that he should direct; which means that he should be an
absolutely fair and intelligent adviser and critic of the enter-
prise. The men who are in charge of an enterprise as execu-
tive officers are supposed to manage, and to possess the re-
quired energy and determination to go forward. But in a
well-equipped organization there should be men who will
check up the manager's judgment and performance. Only
in this way can continued prosperity be assured.
For the proper exercise of the functions of director, it is
essential that he be disinterested; that is, be free from any
conflicting interest. But it is also essential that he have
knowledge. Facts, facts, facts, are the only basis on which
he can properly exercise his judgment. It is as necessary that
he know intimately the facts concerning the business, as
that he have only one interest to subserve. Now, no man can
have such detailed knowledge of the facts of many enter-
prises. This is due to the limitations of time and place and
to those other limits set by nature upon human intelligence.
How can one man know in respect to many large corpora-
25 See also Liberty, Big Business, Monopoly.
26 See also Monopoly.
104- the words of
tions the facts which a director needs to know in order to
insure efficient management? 27
*
My objection to interlocking directorates is not on the
assumption that men mean to do wrong. It is because it is
humanly impossible for a man representing conflicting inter-
ests on two boards to do right by both, no matter how pure
his purpose is.
*
[210] The practice of interlocking directorates is the root
of many evils. It offends laws human and divine. Applied to
rival corporations, it tends to the suppression of competition
and to violation of the Sherman Law. Applied to corpora-
tions which deal with each other, it tends to disloyalty and
to violation of the fundamental law that no man can serve
two masters. In either event it tends to inefficiency; for it
removes incentive and destroys soundness of judgment. It is
undemocratic, for it rejects the platform: "A fair field and
no favors" substituting the pull of privilege for the push of
manhood. It is the most potent instrument of the Money
Trust. Break the control so exercised by the investment
bankers over railroads, public-service and industrial corpo-
rations, over banks, life insurance and trust companies, and
a long step will have been taken toward attainment of the
New Freedom. 23
INVESTOR'S SERVILITY
The large army of small investors, constituting a substan-
tial majority of all security buyers, are entirely free from
banker control. Their submission is undoubtedly due, in
part, to the fact that the bankers control the avenues to
recognizedly safe investments almost as fully as they do the
27 See also Efficiency.
28 See also Bankers' Power, Repeated under New Freedom.
Justice TZrandeis -105
avenues to capital. But the investor's servility is due partly,
also, to his ignorance of the facts. Is it not probable that, if
each investor knew the extent to which the security he buys
from the banker is diluted by excessive underwritings, com-
missions and profits, there would be a strike of capital
against these unjust exactions?
IRREGULARITY OF EMPLOYMENT
Irregularity of employment creates hardships and demor-
alization of every kind. It is the most sinful waste. 29
Irregularity in employmentthe greatest of our evils can-
not be overcome unless production and consumption are
more nearly balanced. 30
JEW DEFINITION OF TERM
Councils of rabbis and others have undertaken at times
to prescribe by definition that only those shall be deemed
Jews who professedly adhere to the orthodox or reformed
faith. But in the connection in which we are considering the
term, it is certainly not in the power of any single body of
Jews, or indeed of all Jews collectively, to establish the effec-
tive definition. The meaning of the word Jewish in the term
Jewish Problem must be accepted as coextensive with the
disabilities which it is our problem to remove. It is the non-
Jews who create the disabilities and in so doing give defini-
tion to the term Jew. Those disabilities extend substantially
to all of Jewish blood. The disabilities do not end with a
renunciation of faith, however sincere. They do not end with
the elimination, however complete, of external Jewish man-
nerisms. The disabilities do not end ordinarily until the
Jewish blood has been so thoroughly diluted by repeated
29 Repeated under Sinful Waste.
30 See Experimentation.
106* the words of
inter-marriages as to result in practically obliterating the
Jew.
And we Jews, by our own acts, give a like definition to
the term Jew. When men and women of Jewish blood suf-
fer, because of that fact, and even if they suffer from quite
different causes, our sympathy and our help goes out to
them instinctively in whatever country they may live and
without inquiring into the shades of their belief or unbelief.
When those of Jewish blood exhibit moral or intellectual
superiority, genius or special talent, we feel pride in them,
even if they have abjured the faith like Spinoza, Marx, Dis-
raeli or Heine. Despite the meditations of pundits or the
decrees of council, our own instincts and acts, and those of
others, have defined for us the term Jew.
JEWISH ATTRIBUTES
[215] To take risks is the very essence of Jewish life, that
is, to take necessary risks. The wise man seeks not to avoid
but to minimize risks. He minimizes them by using judg-
ment and by knowledge and by thinking. These are, fortu-
nately, preeminently Jewish attributes.
JEWISH FESTIVALS
I do not believe that the manner in which some Jewish
festivals are observed does full justice to the historic moments
they celebrate or to the values they symbolize. When aging
forms do hurt to content it is time to think of new form. A
symbol should be transparent and not opaque and should
speak eloquently and convincingly of the idea it represents.
JEWISH HERITAGE
It is not wealth, it is not station, it is not social standing
and ambition which can make us worthy of the Jewish
name, of the Jewish heritage. To be worthy of them, we
must live up to and with them. We must regard ourselves as
'Justice 'Brandeis -107
their custodians. Every young man here must feel that he is
the trustee of what is best in Jewish history. 31
JEWISH INDIVIDUALITY
We recognize that with each child the aim of education
should be to develop his own individuality, not to make him
an imitator, not to assimilate him to others. Shall we fail to
recognize this truth when applied to whole peoples? And
what people in the world has shown greater individuality
than the Jews? Has any a nobler past? Does any possess
common ideas better worth expressing? Has any marked
traits worthier of development? Of all the peoples in the
world those of two tiny states stand preeminent as contribu-
tors to our present civilization, the Greeks and the Jews, The
Jews gave to the world its three greatest religions, reverence
for law, and the highest conceptions of morality. Never be-
fore has the value of our contribution been so generally
recognized. Our teaching of brotherhood and righteousness
has, under the name of democracy and social justice, become
the twentieth century striving of America and of western
Europe. Our conception of law is embodied in the Ameri-
can constitution which proclaims this to be a "government
of laws and not of men." And for the triumph of our other
great teaching, the doctrine of peace, this cruel war is paving
the way. 32
JEWISH INTELLECTUAL CAPACITY
Our intellectual capacity was developed by the almost
continuous training of the mind throughout twenty-five cen-
turies. The Torah led the "People of the Book" to intellec-
tual pursuits at times when most of the Aryan peoples were
illiterate. Religion imposed the use of the mind upon the
Jews, indirectly as well as directly. It demanded of the Jew
31 Repeated under Trustee of History.
32 See also Individuality of Peoples, Nationality.
108* the words of
not merely the love, but also the understanding of God. This
necessarily involved a study of the Law. The conditions
under which the Jews were compelled to live during the last
two thousand years promoted study in a people among
whom there was already considerable intellectual attain-
ment. Throughout the centuries of persecution practically
the only life open to the Jew which could give satisfaction
was the intellectual and spiritual life. Other fields of activity
and of distinction which divert men from intellectual pur-
suits were closed to Jews. Thus they were protected by their
privations from the temptations of material things and
worldly ambitions. Driven by circumstances to intellectual
pursuits their mental capacity gradually developed. And as
men delight in that which they do well, there was an ever-
widening appreciation of things intellectual.
JEWISH "PECULIARITIES"
[220] Common race is only one of the elements which
determine nationality. Conscious community of sentiments,
common experiences, common qualities are equally, perhaps
more, important Religion, traditions and customs bound
us together, though scattered throughout the world. The
similarity of experience tended to produce similarity of qual-
ities and community of sentiments. Common suffering so
intensified the feeling of brotherhood as to overcome largely
all the influences making for diversification. The segregation
of the Jew was so general, so complete, and so long con-
tinued as to intensify our "peculiarities" and make them
almost ineradicable.
JEWISH PEOPLE ITS PRESERVATION
Throughout long years which represent my own life, I
have been to a great extent separated from Jews. I am very
ignorant in things Jewish. But recent experiences, public
and professional, have taught me this: I find Jews possessed
Justice ftrandeis 1 P 6
of those very qualities which we of the twentieth century
seek to develop in our struggle for justice and democracy;
a deep moral feeling which makes them capable of noble
acts; a deep sense of the brotherhood of man; and a high
intelligence, the fruit of three thousand years of civilization.
These experiences have made me feel that the Jewish
people have something which should be saved for the world;
that the Jewish people should be preserved; and that it is
our duty to pursue that method of saving which most
promises success.
JEWISH PERSECUTION
The suffering of the Jews due to injustices continuing
throughout nearly twenty centuries is the greatest tragedy in
history. Never was the aggregate of such suffering larger than
today. Never were the injustices more glaring.
*
I suppose eighteen centuries of Jewish persecution must
have enured me to such hardships and developed the like
of a duck's back.
J E WISH PROBLEM
For us the Jewish Problem means this: How can we secure
for Jews, wherever they may live, the same rights and oppor-
tunities enjoyed by non-Jews? How can we secure for the
world the full contribution which Jews can make, if unham-
pered by artificial limitations?
The problem has two aspects: That of the individual Jew,
and that of Jews collectively. Obviously, no individual
should be subjected anywhere, by reason of the fact that he
is a Jew, to a denial of any common right or opportunity
enjoyed by non-Jews. But Jews collectively should likewise
enjoy the same right and opportunity to live and develop as
do other groups of people. This right of development on the
part of the group is essential to the full enjoyment of rights
110* the words of
by the individual. For the individual is dependent for his
development (and his happiness) in large part upon the
development of the group of which he forms a part. We
can scarcely conceive of an individual German or French-
man living and developing without some relation to the con-
temporary German or French life and culture. And since
death is not a solution of the problem of life, the solution
of the Jewish Problem necessarily involves the continued
existence of the Jews as Jews.
JEWISH SPIRIT AND AMERICA
[225] There is no inconsistency between loyalty to Amer-
ica and loyalty to Jewry. The Jewish spirit, the product of
our religion and experiences, is essentially modern and
essentially American. Not since the destruction of the Tem-
ple have the Jews in spirit and in ideals been so fully in
harmony with the noblest aspirations of the country in
which they lived.
America's fundamental law seeks to make real the broth-
erhood of man. 33 That brotherhood became the Jewish
fundamental law more than twenty-five hundred years ago.
America's insistent demand in the twentieth century is for
social justice. 34 That also has been the Jews' striving for
ages. Their affliction as well as their religion has prepared
the Jews for effective democracy. Persecution broadened
their sympathies. It trained them in patient endurance, in
self-control, and in sacrifice. It made them think as well as
suffer. It deepened the passion for righteousness.
JEWISH SURVIVAL
We have survived persecution because of the virtues and
sacrifices of our ancestors.
33 See America's Fundamental Law.
34 See America's Insistent Demand.
Justice 'Brandeis * a i
JEWS AND DEMOCRACY
Among the Jews democracy was not an ideal merely. It
was a practice, a practice made possible by the existence
among them of certain conditions essential to successful
democracy, namely:
First: An all-pervading sense of duty in the citizen. Demo-
cratic ideals cannot be attained through emphasis merely
upon the rights of man. Even a recognition that every right
has a correlative duty will not meet the needs of democracy.
Duty must be accepted as the dominant conception in life. 35
Such were the conditions in the early days of the colonies
and states of New England, when American democracy
reached there its fullest expression; for the Puritans were
trained in implicit obedience to stern duty by constant study
of the Prophets. 36
Second: Relatively high intellectual attainments. Demo-
cratic ideals cannot be attained by the mentally undevel-
oped. In a government where everyone is part sovereign,
everyone should be competent, if not to govern, at least to
understand the problems of government; and to this end
education is an essential. 37 The early New Englanders ap-
preciated fully that education is an essential of potential
equality. The founding of their common school system was
coincident with founding of the colonies; and even the
establishment of institutions for higher education did not
lag far behind. Harvard College was founded but six years
after the first settlement of Boston. 38
Third: Submission to leadership as distinguished from
authority. Democratic ideals can be attained only where
those who govern exercise their power not by alleged divine
right or inheritance, but by force of character and intelli-
35 See Duty.
36 Repeated under Puritans.
37 See Democratic Ideals.
38 See Early New Englanders.
H2 the words of
gence. 39 Such a condition implies the attainment by citizens
generally of relatively high moral and intellectual standards;
and such a condition actually existed among the Jews. These
men who were habitually denied rights, and whose province
it has been for centuries "to suffer and to think/' learned
not only to sympathize with their fellows (which is the
essence of a democracy and social justice) , but also to accept
voluntarily the leadership of those highly endowed, morally
and intellectually.
Fourth: A developed community sense. The sense of duty
to which I have referred was particularly effective in pro-
moting democratic ideals among the Jews, because of their
deep-seated community feeling. To describe the Jew as an
individualist is to state a most misleading half-truth. He has
to a rare degree merged his individuality and his interests in
the community of which he forms a part. This is evidenced
among other things by his attitude toward immortality.
Nearly every other people has reconciled this world of
suffering with the idea of a beneficent Providence by con-
ceiving of immortality for the individual. The individual
sufferer bore present ills by regarding this world as merely
the preparation for another, in which those living right-
eously here would find individual reward hereafter. Of all
nations, Israel "takes precedence in suffering"; but, despite
our national tragedy, the doctrine of individual immortality
found relatively slight lodgment among us. 4a
JEWS TODAY
I believe that the Jews can be just as much of a priest
people today as they ever were in the prophetic days. 41
S9 See Democratic Ideals, Character and Intelligence.
40 See also Immortality of the Soul.
41 See also Chosen People.
Justice TSrandeis * i i 3
JOINERS 42
Multiplicity of pursuits is as great a curse as bigness. The
greatest benefactors of the human race have not been they
who attempted many things but they who did a few things
well. The growing propensity of Americans to "join" is
bound to result in indifference to all organizations and in
organizational bureaucracies.
JOSEPH
[230] Our ancestor Joseph who realized that there were
lean years as well as fat ones knew a thing or two.
j UDGES
I believe that our judges are as honest as you can make
men. But like all the rest of us they are subject to their
environment and law has always been a narrowing, con-
servatizing profession. 43 In England it was always easy for
a Tory government to find great lawyers for judicial office
but for a liberal government it was hard. And so it has been
throughout history. Nearly all of England's great lawyers
were Tories.
The judge came to the bench unequipped with the neces-
sary knowledge of economic and social science,, and his
judgments suffered likewise through lack of equipment in
the lawyers who presented the cases to him. For a judge
rarely performs his functions adequately unless the case
before him is adequately presented. Thus were the blind
led by the blind. It is not surprising that under such condi-
tions the laws as administered failed to meet contemporary
economic and social demands. 44
42 See also Monopoly.
43 Repeated under Law and Life.
44 Repeated under Lawyers' Education.
i i 4 the words of
#
What we must do in America is not to attack our judges,
but to educate them. All judges should be made to feel, as
many judges already do, that the things needed to protect
liberty are radically different from what they were fifty years
back. In some courts the judges' conceptions of their own
powers must also change. Some judges have decided a law
unconstitutional simply because they considered the law
unwise. These judges should be made to feel that they have
no such right, that their business is not to decide whether
the view taken by the legislature is a wise view, but whether
a body of men could reasonably hold such a view. In the past
the courts have reached their conclusions largely deductively
from preconceived notions and precedents. The method I
have tried to employ in arguing cases before them has been
inductive, reasoning from the facts. 45
j USTICE
Justice can be attained only by a careful regard for funda-
mental facts, since justice is but truth in action.
LABOR'S SHARE 46
[235] We ought to make up for the opportunity we lost
when we changed from hand labor to machine labor. I think
it is perfectly clear that when that change was made the
employer got more than he ought to have got; and labor
did not get its share, because labor was not organized. Now,
when labor is to a very considerable extent organized, labor
ought to insist upon scientific management. It has a just
cause of complaint if a business is not well managed. Then,
when the proceeds of good management are secured, labor
ought to insist upon getting its share; and, as I have said, I
think its share ought to be large, because of the reason that
45 See Facts.
46 See also Human Truth, Responsibility, Scientific Management.
Justice 'Brandeis -145
when machines were introduced labor did not get its share,
LAW AND LIFE 47
The law has everywhere a tendency to lag behind the facts
of life.
*
Law has always been a narrowing, conservatizing profes.-
sion. 48
#
Modification implies growth. It is the life of the law.
LAW AND PUBLIC OPINION
Whether a law enacted in the exercise of the police power
is just, subject to the charge of being unreasonable or arbi-
trary can ^rdinarily be determined only by a consideration
of the contemporary conditions, social, industrial, and
political, of the community to be affected thereby. Resort
to such facts is necessary, among other things, in order to
appreciate the evils sought to be remedied and the possible
effects of the remedy proposed. Nearly all legislation in-
volves a weighing of public needs as against private desires,
and likewise a weighing of relative social values. Since gov-
ernment is not an exact science, prevailing public opinion
concerning the evils and the remedy is among the important
facts deserving consideration, particularly when the public
conviction is both deep-seated and widespread and has been
reached after deliberation.
LAW AND THE WILL OF THE PEOPLE
[240] Your former townsman, Charles R. Crane, told me
once the story of two men whose lives he would have cared
most to have lived. One was Bogigish, a native of the ancient
47 See also Government Control, Living Law.
48 See Judges.
it 6 * the words of
-city of Ragusa off the coast of Dalmatia a deep student of
law, who after gaining some distinction at the University
of Vienna and in France, became Professor at the Uni-
versity of Odessa. When Montenegro was admitted to the
family of nations, its Prince concluded that, like other civi-
lized countries., it must have a code of law. Bogigish's fame
had reached Montenegro, for Ragusa is but a few miles
distant. So the Prince begged the Czar of Russia to have
the learned jurist prepare a code for Montenegro. The Czar
granted the request, and Bogigish undertook the task. But
instead of utilizing his great knowledge of laws to draft a
code, he proceeded to Montenegro, and for two years liter-
.ally made his home with the people, studying everywhere
their customs, their practices, their needs, their beliefs, their
points of view. Then he embodied in law the life which the
Montenegrins lived. They respected that law, because it ex-
pressed the will of the people.
No law can be effective which does not take into con-
sideration the conditions of the community for which it is
designed; no law can be a good lawevery law must be a
bad law that remains unenf orced.
No small part of the law's function is to make men good.
LAWS MOT MEN 50
The way to correct the evil of an unjust decision is not
to evade the law but to amend it. The unions should take
the position squarely that they are amenable to law, pre-
pared to take the consequences if they transgress, and thus
show that they are in full sympathy with the spirit of our
49 See also Government Control.
50 See also Unio&.
Justice 'Brandeis 1 i 7
people, whose political system rests upon the proposition
that this is a government of law, and not of men.
*
Checks and balances were established in order that this
should be "a government of laws and not of men."
LAWYERS'* EDUCATION
[245] The pursuit of the legal profession involves a happy
combination of the intellectual with the practical life. The
intellectual tends to breadth of view; the practical to that
realization of limitations which are essential to the wise con-
duct of life. Formerly the lawyer secured breadth of view
largely through wide professional experience. Being a gen-
eral practitioner, he was brought into contact with all phases
of contemporary life. His education was not legal only,
because his diversified clientage brought him, by the mere
practice of his profession, an economic and social education.
The relative smallness of the communities tended to make
his practice diversified not only in the character of matters
dealt with, but also in the character or standing of his
clients. For the same lawyer was apt to serve at one time or
another both rich and poor, both employer and employee.
Furthermore, nearly every lawyer of ability took some part
in political life. Our greatest judges, Marshall, Kent, Story,
Shaw, had secured this training. . . .
The last fifty years have brought a great change in pro-
fessional life. Industrial development and the consequent
growth of cities have led to a high degree of specialization
specialization not only in the nature and class of questions
dealt with, but also specialization in the character of client-
age. The term "corporation lawyer" is significant in this
connection. 51 The growing intensity of professional life
tended also to discourage participation in public affairs, and
51 See also Corporation Lawyer.
118- the words of
thus the broadening of view which comes from political life
was lost. . . .
The effect of this contraction of the lawyers' intimate rela-
tion to contemporary life was doubly serious, because it
came at a time when the rapidity of our economic and
social transformation made accurate and broad knowledge
of present-day problems essential to the administration of
justice.
The judge came to the bench unequipped with the neces-
sary knowledge of economic and social science, and his judg-
ment suffered likewise through lack of equipment in the
lawyers who presented the cases to him. For a judge rarely
performs his functions adequately unless the case before him
is adequately presented. Thus were the blind led by the
blind. It is not surprising that under such conditions the
laws as administered failed to meet contemporary economic
and social demands. . . , 52
We are powerless to restore the general practitioner and
general participation in public life. Intense specialization
must continue. But we can correct its distorting effects by
broader education by study undertaken preparatory to
practiceand continued by lawyer and judge throughout
life; study of economics and sociology and politics which
embody the facts and present the problems of today.
LAWYERS* KNOWLEDGE
Knowledge of decisions and powers of logic are mere
handmaidens they are servants, not masters. The control-
ling force is the deep knowledge of human necessities. It
was this which made Jessel the great lawyer and the greater
judge. The man who does not know intimately human
affairs is apt to make of the law a bed of Procrustes. No
hermit can be a great lawyer, least of all a commercial
lawyer. When from a knowledge of the law, you pass to its
52 See Judges. ~~~
Justice T$ r a n d e i $ 1 19
application, the need of a full knowledge of men and of
their affairs becomes even more apparent The duty of a
lawyer today is not that of a solver of legal conundrums;
he is indeed a counsellor of law. Knowledge of the law is
of course essential to his efficiency, but the law bears to his
profession a relation very similar to that which medicine
does to that of the physicians. The apothecary can prepare
the dose, the more intelligent one even knows the specific
for most common diseases. It requires but a mediocre physi-
cian to administer the proper drug for the patient who
correctly and fully describes his ailment. The great physi-
cians are those who in addition to that knowledge of thera-
peutics which is open to all, know not merely the human
body but the human mind and emotions, so as to make
themselves the proper diagnosis to know the truth which
their patients fail to disclose and who add to this an influ-
ence over the patient which is apt to spring from a real
understanding of him. 53
LAWYERS' OPPORTUNITY
It is true that at the present time the lawyer does not hold
that position with the people which he held fifty years ago;
but the reason is in my opinion not lack of opportunity. It
is because, instead of holding a position of independence
between the wealthy and the people, prepared to curb the
excesses of either, the able lawyers have to a great extent
allowed themselves to become an adjunct of the great cor-
porations, and have neglected their obligation to use their
powers for the protection of the people. If we are to solve
the important economic, social and industrial questions
which have become political questions also, it seems to me
clear that the attitude of the lawyer in this respect must
be materially changed. . . . The great opportunity of the
53 See Great Physicians.
120- the words of
American Bar is and will be to stand again as it did in the
past, ready to protect also the interest of the people.
The people are beginning to doubt whether in the long
run democracy and absolutism can coexist in the same com-
munity; beginning to doubt whether there is really a justifi-
cation for the great inequalities in the distribution of wealth.
This movement must necessarily progress; the people's
thought will take shape in action. And it lies with our
lawyers to say in what lines that action shall be expressed:
wisely and temperately or wildly and intemperately; in lines
of evolution or in lines of revolution.
LAWYERS'* SPECIAL OBLIGATION 54
We who are lawyers have a special obligation, and that
is to make our law efficient. The disgrace that has come
to the law, the discredit, the disrespect which has come to
the law, is because it is inefficient, and because we make
rules and we do not provide any machinery for enforcing
them.
LAWYERS' TRAINING 55
[250] The whole training of the lawyer leads to the de-
velopment of judgment. His early training his work with
books in the study of legal rules teaches him patient re-
search and develops both the memory and the reasoning
faculties. He becomes practiced in logic; and yet the use of
the reasoning faculties in the study of law is very different
from their use, say, in metaphysics. The lawyer's processes
of reasoning, his logical conclusions, are being constantly
tested by experience. He is running up against facts at
every point. Indeed it is a maxim of the law: Out of the facts
54 See also Government Control.
55 See also Facts.
Justice 'Brandeis i 2 1
grows the law; that is, propositions are not considered ab-
stractly, but always with reference to facts.
LEGAL PROFESSION 50
Young men who feel drawn to the legal profession may
rest assured that they will find in it an opportunity for use-
fulness which is probably unequalled elsewhere. There is
and there will be a call upon the legal profession to do a
great work for this country.
*
Our country is, after all, not a country of dollars, but of
ballots. The immense corporate wealth will necessarily
develop a hostility from which much trouble will come to
us unless the excesses of capital are curbed, through the
respect for law, as the excesses of democracy were curbed
seventy-five years ago. 57 There will come a revolt of the
people against the capitalists, unless the aspirations of the
people are given some adequate legal expression; and to this
end cooperation of the abler lawyers is essential.
LEGAL SCIENCE DEAF AND BLIND
Political as well as economic and social science noted
these revolutionary changes. But legal science the un-
written or judge-made laws as distinguished from legislation
was largely deaf and blind to them. Courts continued to
ignore newly arisen social needs. They applied complacently
eighteenth century conceptions of the liberty of the indi-
vidual and of the sacredness of private property. Early nine-
teenth century scientific half-truths, like "The survival of
the fittest/' which translated into practice meant "The devil
take the hindmost/' were erected by judicial sanction into
a moral law.
56 See also Corporation Lawyer.
57 See Excesses of Capital.
422- thewords'of
LEISURE 58
No people ever did or ever can attain a worthy civiliza-
tion by the satisfaction merely of material needs, however
high these needs are raised. The American standard of liv-
ing demands not only a high minimum wage, but a high
minimum of leisure, because we must meet also needs other
than material ones.
*
[255] Serfdom, slavery, peonage, sweatshops held back
progress for centuries. By bread alone or labor alone man
can barely exist. To live and make life worth living he must
have leisure to enjoy the fruits of his labor.
*
Leisure does not imply idleness. It means ability to work
not less but more, ability to work at something besides
breadwinning, ability to work harder while working at
breadwinning, and ability to work more years at bread-
winning. Leisure, so defined, is an essential of successful
democracy.
#
The art of using leisure time, like any other, must be
learned; but it is certain that the proper use of leisure, as of
liberty, can never be attained except by those who have the
opportunity of leisure or of liberty.
*
We need leisure, among other reasons, because with us
every man is of the ruling class. Our education and condi-
tion of life must be such as become a ruler. Our great
beneficent experiment in democracy will fail unless the
people, our rulers, are developed in character and intelli-
gence. 59
58 See also Short Workday.
5S See Democratic Ideals.
Justice TSrandeis * i 2 3
LIBERALISM AND ANTI-JEWISH PREJUDICE
Why is it that liberalism has failed to eliminate the anti-
Jewish prejudice? It is because the liberal movement has
not yet brought full liberty. Enlightened countries grant to
the individual equality before the law; but they fail still to
recognize the equality of whole peoples or nationalities. We
seek to protect as individuals those constituting a minority;
but we fail to realize that protection cannot be complete
unless group equality also is recognized. 60
LIBERATION OF SMALLER PEOPLES
[260] The liberation of lesser nationalities is prominent
among the hopeful results of the War. And yet their inde-
pendence was won less by arms than the slow process of
education. It was largely the work of far-seeing, patient,
persistent devoted men and women, who awakened in the
rising generation an interest in the language, the literature,
the traditions of their people, and through the acquisition
of knowledge, developed the striving for liberty and op-
portunity and the fuller life.
LIBERTY 61
The history of Anglo-Saxon and of American liberty rests
upon that struggle to resist wrong to resist it at any cost
when first offered rather than to pay the penalty of ignomin-
ious surrender.
*
The liberty of each individual must be limited in such a
way that it leaves to others the possibility of individual
liberty; the right to develop must be subject to that limita-
tion which gives everybody else the right to develop; the
restriction is merely an adjustment of the relations of one
individual to another.
60 See also Individuality of Peoples.
61 See also Industrial Liberty.
i 24 * the words of
#
I cannot believe that the liberty guaranteed by the
Fourteenth Amendment includes only liberty to acquire
and to enjoy property.
*
Liberty means exercising one's rights consistently with a
like exercise of rights by other people; , . . liberty is dis-
tinguished from license in that it is subject to certain re-
strictions and that no one can expect to secure liberty in
the sense in which we recognize it in America without
having his rights curtailed in those respects in which it is
necessary to limit them in the general public interest. 62
*
[265] Liberty has come to mean the right to enjoy life, to
acquire property, to pursue happiness, in such manner that
the exercise of the right in each is consistent with the exer-
cise of a like right by every other of our fellow citizens.
Liberty thus defined underlies twentieth century democracy.
Liberty thus defined exists in a large part of the western
world. And even where this equal right of all has not yet
been accepted as a political right, its ethical value is becom-
ing recognized. 63
*
Liberty is the greatest developer. Herodotus tells us that
while the tyrants ruled, the Athenians were no better fighters
than their neighbors; but when freed they immediately sur-
passed all others. 64
Liberty has knit us closely together as Americans. 65
62 See Employers and Unions.
63 See Individuality of Peoples.
64 See Industrial Democracy.
65 See E Pluribus Unum.
Justice 'Brandeis 1 2 5
LIBERTY'S GREATEST DANGER
The greatest dangers to liberty lurk in insidious encroach-
ment by men of zeal, well-meaning but without understand-
ing. 66
LIBERTY THROUGH LAW
The great achievement of the English-speaking people is
the attainment of liberty through law.
LIB RARY
[270] The library was to be not a static thing, but a
dynamic force.
LIQUOR
The use of liquor is not a wrong. It is the abuse and no(
the use which is wrong. . . . Remember the weaknesses oi:
men and endeavor to protect them but do not forget that
even the weak are strong enough to resist too severe restric-
tions. Remember that any regulations which you may adopt
will, at best, reduce the evil which is sure to flow from the:
appetite of men for stimulating liquors.
LIVING LAW 67
The Struggle Continues. The court reawakened to the
truth of the old maxim of the civilians, E% facto jus oritur.
It realized that no law, written or unwritten, can be under-
stood without a full knowledge of the facts out of which it
is to be applied. But the struggle for the living law has not
been fully won.
LOGIC OF REALITIES 68
The logic of words should yield to the logic of realities.
66 See Government Intrusion.
67 See also Law and Life.
68 See also Facts.
126* the words of
LONG HOURS 69
The first question in considering the condition of labor
is, and to my mind must be, the hours of labor. No matter
what men are paid, no matter what the ordinary conditions
may be under which they work, the first question must be,
How long did this man work? Because not only does the
excess of hours of labor entail upon the individual very
serious consequences in respect to health and the ability to
endure labor in the future, but the effect upon the com-
munity as a whole is of infinite importance; in the first
place, in determining what is the time that is left to the
individual to devote himself to the needs of his own family,
to aid in the education and the bringing up of his children;
and in the second place, what is the time that is left to the
individual to perform those duties which are incumbent
upon him as a citizen of a free country.
*
[275] The best of wages will not compensate for excess-
ively long working hours which undermine health.
*
The effect of overwork on morals is closely related to the
injury of health. Laxity of moral fibre follows physical de-
bility. When the working day is so long that no time what-
ever is left for a minimum of leisure or home life, relief
from the strain of work is sought in alcoholic stimulants and
other excesses, #
The fatigue which follows long hours of labor becomes
chronic and results in general deterioration of health. Often
ignored, since it does not result in immediate disease, this
weakness and anaemia undermines the whole system; it
destroys the nervous energy most necessary for steady work,
and effectually predisposes to other illness. The long hours
69 See also Leisure, Short Workday.
Justice 'Brandeis * 1 2 7
of standing, which are required in many industries, are uni-
versally denounced by physicians as the cause of pelvic
disorders.
LOW WAGES
No proposition in economics is better established than
that low wages are not cheap wages. On the contrary, the
best in wages is the cheapest. . . . Why should the propo-
sition be doubted, that wages insufficient to sustain the
worker properly are uneconomical? Does anybody doubt
that the only way you can get work out of a horse is to feed
the horse properly? Does anyone doubt that the only way
you can get hens to lay, is to feed the hens properly? Re-
garding cows we know now that even proper feeding is not
enough, or proper material living conditions. . . . Experi-
ence has taught us that harsh language addressed to a cow
impairs her usefulness. Are women less sensitive than beasts
in these respects?
LOYALTY
The loyalty that you want is loyalty to the real employer,
to the people of the United States. This idea that loyalty
to an immediate superior is something commendable when
it goes to a f orgetfulness of one's country involves a strange
misconception of what democracy is. It is a revival a relic
of the slave status, a relic of the time when "the king
could do no wrong/' and when everybody owed allegiance
to the king.
WM . H . MCELWAIN
[280] He worked for nobler ends than mere accumulation
or lust of power. . . . McElwain made so many advances
in the methods and practices of the long-established and
prosperous branch of industry in which he was engaged,
that he may be said to have revolutionized shoe manufac-
turing. He found it a trade; he left it an applied science.
428* the words of
MACCABEAN STRUGGLE
As a part of the eternal world-wide struggle for democ-
racy, the struggle of the Maccabees is of eternal world-wide
interest. It is a struggle of the Jews today, as well as those
of 2,000 years ago. It is a struggle of America as well as of
Palestine. It is a struggle in which all Americans, non-Jews
as well as Jews, should be vitally interested because they
are vitally affected.
MACHINERY
The great advance created by the introduction of ma-
chinery we permitted, in large measure, to be dissipated
socially instead of utilizing the opportunity fully to raise
the standard of our civilization.
MAIN FACTOR IN BETTERMENT
Seek for betterment within the broad lines of existing
institutions. Do so by attacking evil in situ; and proceed
from the individual to the general. Remember that progress
is necessarily slow; that remedies are necessarily tentative;
that because of varying conditions there must be much and
constant enquiry into facts . . . and much experimenta-
tion; and that always and everywhere the intellectual, moral
and spiritual development of those concerned will remain
an essential and the main factor in real betterment. 7(>
MAN
Men are not bad, men are not degraded, because they
desire to be so; they are degraded largely through circum-
stances.
[285] Man is weak and his judgment is at best fallible. 71
70 See Existing Institutions.
71 See Experimentation.
Justice 'Brandeis * i 29
*
Man has not kept pace in growth with his works.
MAN'S WORK
Man's work is, at best, so insignificant compared with
that of the Creator it is all so Lilliputian, one cannot bow
before it. 72
MASSACHUSETTS' TASK
No one but a fanatic can be sure that his opinions-
political, economic, or social are correct. But no man, be
he reactionary or progressive, ought to doubt that free
thought and free speech are necessary in a democracy; and
that their exercise in things public should be encouraged.
My opponents throughout long years practically refused to
discuss publicly or privately with me the measures under
consideration. For opposing arguments they substituted at-
tacks upon reputation. And the community permitted them
to do so almost without a protest. This seems to me the
fundamental defect. Our task in Massachusetts is to recon-
struct manhood.
MESSIAH
The belief in a Messiah and a Messianic Age is foreign
to my way of thinking. My interests are the real, natural,
and intelligible, and also the probable and possible. I hold
it to be improbable and impossible that there will ever live
a man who will possess all knowledge and be in a position
to solve all of man's problems, or that there will come an
age that will be altogether free from trouble and vexation.
As to whether the belief in a Messiah has been helpful or
harmful I cannot say. Certain socialist thinkers have main-
tained that it has hindered progress. But I doubt it. No one
has as yet proved satisfactorily whether the acceptance of
72 See Character.
130- the words of
dogmas affects a man's conduct one way or another. My
impression is that the faithful outnumber the virtuous and
that not all the unbelieving are saints.
MINIMUM WAGE
[290] I am convinced that a minimum wage instead of
adding to the expense of an establishment would, after the
initial period of introduction, reduce the actual expenses
of the establishment. Anything which is of better quality,
which costs a little more, gives a larger percentage of value
than the thing that is cheap. It is one of the curses of the
poor that they have to buy poor things; and it is precisely
the same in regard to human labor and human service as
in regard to merchandise,
MIRACLES
There has been more nonsense written about miracles
than almost about any other subject. On the whole I gather
the impression that those who loudly protest their belief
in miracles feel the need of reassuring themselves.
MONEY
The service of money will resemble that of water in agri-
culture always indispensable, always beneficent to the point
where it becomes excessive but of little avail unless the soil
be rich, naturally or through fertilizers, unless there be
appropriate cultivation, and unless the operations be con-
ducted with good judgment,
MONEY-MAKING AND SERVICE
Think of the great work that has been done in the world
by men who had no thought of money reward. No; money
is not worth a great man's time. It is unworthy of greatness
to strive for that alone. What then? Power? That isn't
much better, if you mean the kind of power that springs
from monev. Is it the game? You hear that nowadavs
jfustice 'Brandeis * i 3 i
the game! It sounds too frivolous. To me the word is Service.
Money-making will become incidental to Service. The man
of the future will think more of giving Service than of
making money, no matter what particular kind of Service
it happens to be. It will become a distinction worth striv-
ing for to give the best Service, whether you are conducting
a retail shop or a great railroad. It naturally follows that
those who give the best Service will make money, because
success must be profitable, yet Service, and not money-
making, will be the end. Though the work of the greatest
artists may command the highest prices, their incentive has
not been money. It has been the desire to achieve profes-
sional success. 73 That will be the spirit of business in the
future. 74
M N O P OL Y 7B
There are still intelligent, informed, just-minded and
civilized persons who believe that the rapidly growing aggre-
gation of capital through corporations constitutes an insidi-
ous menace to the liberty of the citizen; that it tends to
increase the subjection of labor to capital; that, because of
the guidance and control necessarily exercised by great cor-
porations upon those engaged in business, individual initia-
tive is being impaired and creative power will be lessened;
that the absorption of capital by corporations, and their
perpetual life, may bring evils similar to those which at-
tended mortmain; that the evils incident to the accelerating
absorption of business by corporations outweigh the benefits
thereby secured; and that the process of absorption should
be retarded.
73 See Artists.
74 See also Business A Profession.
75 See also Absolute Power, Bankers' Ethics, Industrial Absolutism,
Industrial Liberty, People's Own Gold, Regulated Competition,
Sherman Law, Socialism.
432- the words of
#
[295] The assertion that the great financial interests exer-
cise a potent, subtle, and sinister influence in the important
decisions of our Government had often been made by men
high in authority.
*
The prevalence of the corporation in America has led men
of this generation to act, at times, as if the privilege of doing
business in corporate form were inherent in the citizen;
and has led them to accept the evils attendant upon the
free and unrestricted use of the corporate mechanism as if
these evils were the inescapable price of civilized life, and,
hence, to be borne with resignation. Throughout the greater
part of our history a different view prevailed.
*
Size alone gives to giant corporations a social significance
not attached ordinarily to smaller units of private enter-
prise. Through size, corporations ... are sometimes able
to dominate the state. The typical business corporation of
the last century, owned by a small group of individuals,
managed by their owners, and limited in size by their per-
sonal wealth, is being supplanted by huge concerns in which
the lives of tens or hundreds of thousands of investors are
subjected, through the corporate mechanism, to the control
of a few men. Ownership has been separated from control;
and this separation has removed many of the checks which
formerly operated to curb the misuse of wealth and power.
And as ownership of the shares is becoming continually
more dispersed, the power which formerly accompanied
ownership is becoming increasingly concentrated in the
hands of a few. The changes thereby wrought in the lives
of the workers, of the owners, and of the general public,
are so fundamental and far-reaching as to lead these scholars
to compare the evolving "corporate system" with the feudal
'Justice E r a n d e i s -133
system; and to lead other men of insight and experience
to assert that this "master institution of civilized life 7 ' is
committing it to the rule of a plutocracy.
*
The statement that size is not a crime is entirely correct
when you speak of it from the point of motive. But size may
become such a danger in its results to the community that
the community may have to set limits. A large part of our
protective legislation consists of prohibiting things which
we find are dangerous, according to common experience.
Concentration of power has been shown to be dangerous
in a democracy, even though that power may be used benef-
icently. 76
#
The trust problem can never be settled right for the Amer-
ican people by looking at it through the spectacles of bonds
and stocks. You must study it through the spectacles of
people's rights and people's interests; must consider the
effect upon the development of the American democracy.
When you do that you will realize the extraordinary perils
to our institutions which attend the trusts; you will realize
the danger of letting the people learn that our sacred Con-
stitution protects not only vested rights but vested wrongs.
The situation is a very serious one; unless wise legislation is
enacted we shall have as a result of that social unrest, a
condition which will be more serious than that produced
by the fall of a few points in stock-exchange quotations.
*
[300] The first essential of wise and just action is knowl-
edge. And as a means of obtaining this knowledge we should
secure uniform account. It was, as I remember, the great
Colbert who said, "Accountancy that is government/ 7
76 See also Big Business, Bigness.
134* the words of
*
Nobody can form a judgment that is worth having with-
out a fairly detailed and intimate knowledge of the facts,
and the circumstances of these gentlemen, largely bankers
of importance, with a multitude of different associations
and occupations the fact that those men cannot know the
facts is conclusive to my mind against a system by which the
same men are directors in many different companies. I
doubt whether anybody who is himself engaged in any im-
portant business has time to be a director in more than one
large corporation. If he seeks to know about the affairs of
that one corporation as much as he should know, not only
in the interest of the stockholders, but in the interest of the
community, he will have a field for study that will certainly
occupy all the time that he has. 7T
*
My observation leads me to believe that while there are
many contributing causes to unrest, there is one cause
which is fundamental. That is the necessary conflict the
contrast between our political liberty and our industrial ab-
solutism. 78 We are as free politically, perhaps, as free as it is
possible for us to be. Every male has his voice and vote; and
the law has endeavored to enable, and has succeeded prac-
tically, in enabling him to exercise his political franchise
without fear. He therefore has his part; and certainly can
secure an adequate part in the government of the country in
all of its political relations; that is, in all relations which
are determined directly by legislation or governmental ad-
ministration.
On the other hand, in dealing with industrial problems
the position of the ordinary worker is exactly the reverse.
The individual employee has no effective voice or vote. And
See also Concentration, Interlocking Directorates, Joiners.
178 Repeated under Unrest
Justice "Brandeis * i 3 5
the main objection, as I see it, to the very large corporation
is, that it makes possible and in many cases makes inevita-
blethe exercise of industrial absolutism. It is not merely
the case of the individual worker against the employer
which, even if he is a reasonably sized employer, presents a
serious situation calling for the interposition of a union to
protect the individual. But we have the situation of an em-
ployer so potent, so well organized, with such concentrated
forces and with such extraordinary powers of reserve and the
ability to endure against strikes and other efforts of a union,
that the relatively loosely organized masses of even strong
unions are unable to cope with the situation. We are dealing
here with a question, not of motive, but of condition. Now,
the large corporations and the managers of the powerful
corporations are probably in large part actuated by motives
just the same as an employer of a tenth of their size. Neither
of them, as a rule, wishes to have his liberty abridged; but
the smaller concern usually comes to the conclusion that it
is necessary that it should be, where an important union
must be dealt with. But when a great financial power has
developedwhen there exist these powerful organizations,
which can successfully summon forces from all parts of the
country, which can afford to use tremendous amounts of
money in any conflict to carry out what they deem to be
their business principle, and can also afford to suffer large
losses you have necessarily a condition of inequality be-
tween the two contending forces. Such contests, though
undertaken with the best motives and with strong convic-
tion on the part of the corporate managers that they are
seeking what is for the best interests not only of the com-
pany but of the community, lead to absolutism. The result,
in the cases of these large corporations, may be to develop a
benevolent absolutism, but it is an absolutism all the same;
and it is that which makes the great corporation so danger-
ous. There develops within the State a state so powerful that
136* the words of
the ordinary social and industrial forces existing are insuffi-
cient to cope with it.
*
Many dangers to democracy ... are inherent in these
huge aggregations. 79
*
All the power of capital and all the ability and intelligence
of the men who wield and who serve the capital have been
used to make practically slaves of these operatives, because it
does not mean merely in respect to the way in which they
have lived, but the very worst part of all this is the repres-
sion. It is a condition of repression, of slavery in the real
sense of the word, which is alien to American conditions.
*
[305] More serious ... is the effect of the Money Trust
in directly suppressing competition. That suppression ena-
bles the monopolist to extort excessive profits; but monop-
oly increases the burden of the consumer even more in other
ways. Monopoly arrests development; and through arresting
development, prevents that lessening of the cost of pro-
duction and of distribution which would otherwise take
place. . . .
But far more serious even than the suppression of compe-
tition is the suppression of industrial liberty, indeed of
manhood itself, which this overweening financial power en-
tails. The intimidation which it effects extends far beyond
"the banks, trust companies, and other institutions seeking
participation from this inner group in their lucrative under-
writings"; and far beyond those interested in the great cor-
porations directly dependent upon the inner group. Its
blighting and benumbing effect extends as well to the small
and seemingly independent business man, to the vast army
TO See Dangers to Democracy,
justice 'Brandeis 1 3 7
of professional men and others directly dependent upon
"Big Business/ 7 and to many another.
*
The talk of the agitator alone does not advance socialism
a step; but the formation of great trusts the huge railroad
consolidations the insurance "racers" with the attendant
rapacity or the dishonesty of their potent managers, and
their frequent corruption of councils and legislatures is
hastening us almost irresistibly into socialistic measures. The
great captains of industry and of finance, who profess the
greatest horror of the extension of governmental functions,
are the chief makers of socialism. Socialistic thinkers smile
approvingly at the operations of Morgan, Perkins and Rocke-
feller, and of the Hydes, McCalls and McCurdys. They
see approaching the glad day when monopoly shall have
brought all industry and finance under a single head, so that
with the cutting of a single neck, as Nero vainly wished for
his Christian subjects, destruction of the enemy may be
accomplished. Our great trust-building, trust-abusing capi-
talists have in their selfish shortsightedness become the
makers of socialism, proclaiming by their acts, like the
nobles of France, "After us, The Deluge!" 80
*
It has been suggested that we accept the proposed mo-
nopoly in transportation but provide safeguards.
This would be like surrendering liberty and substituting
despotism with safeguards. There is no way in which to
safeguard people from despotism except to prevent despot-
ism. 81 There is no way to safeguard the people from the
evils of a private transportation monopoly except to prevent
the monopoly. The objections to despotism and to monop-
oly are fundamental in human nature. They rest upon the
80 Repeated under Socialism.
81 See Despotism.
138* the words of
innate and ineradicable selfishness of man. They rest upon
the fact that absolute power inevitably leads to abuse. They
rest upon the fact that progress flows only from struggle. 82
*
We have got to encourage in every way the individual
enterprise, and we have to bear in mind that on the one
hand while you are encouraging the enterprise and making
for the advance of the country and the prosperity of the
individual, the inventor, and the business man; on the other
hand, the moment you get these large organizations, these
large trusts, you are doing exactly the opposite; you are put-
ting an actual damper upon advance.
*
Human nature is such that monopolies, however well in-
tentioned and however well regulated, inevitably become
oppressive, arbitrary, unprogressive and inefficient. 83
#
[510] We have no place in the American democracy for
the money king, not even for the merchant prince. We are
confronted in the twentieth century, as we were in the nine-
teenth century, with an irreconcilable conflict. Our democ-
racy cannot endure half free and half slave. The essence of
the trust is a combination of the capitalist, by the capital-
ist, for the capitalist. 84
#
The American people have as little need of oligarchy in
business as in politics.
*
We must break the Money Trust or the Money Trust
will break us.
82 Repeated under Progress.
83 See Human Nature.
8 * See Half Free and Half Slave.
Justice Vrandeis -439
MONOPOLY AND EFFICIENCY
Whenever trusts have developed efficiency, their fruits
have been absorbed almost wholly by the trusts themselves.
From such efficiency as they have developed, the com-
munity has gained substantially nothing.
*
It is true that the unit in business may be too small to be
efficient. It is also true that the unit may be too large to be
efficient, and this is no uncommon incident of monopoly. 85
MOTIVES AND RESULTS
[315] In things economic and social, wrong results do not
proceed to any very great extent from wrong motives. The
motives are, in the main, right meaning by "motives," in-
tent. But the results sought are very often wrong. People
fail to recognize true values. It is failure to recognize things
at their real worth which leads to unfortunate results.
NATIONAL INDIVIDUALITY
The movements of the last century have proved that
whole peoples have individuality no less marked than that
of the single person; that the individuality of a people is
irrepressible, and that the misnamed internationalism which
seeks the obliteration of nationalities or peoples is unattain-
able. 8541 The new nationalism adopted by America proclaims
that each race or people, like each individual, has the right
and duty to develop, and that only through such differen-
tiated development will high civilization be attained. Not
until these principles of nationalism, like those of democ-
racy, are generally accepted will liberty be fully attained and
minorities be secure in their rights. Not until then can the
foundation be laid for a lasting peace among the nations.
85 See also Efficiency.
ssa See also Individuality of Peoples, Jewish Individuality.
1 40 the words of
NATIONALITY
Deeply imbedded in every people is the desire for full de-
velopment, the longing, as Mazzini phrased it, "to elaborate
and express their idea, to contribute their stone also to the
pyramid of history." Nationality like democracy has been
one of the potent forces making for man's advance during
the past hundred years. The assertion of nationality has in-
fused whole peoples with hope, manhood and self-respect.
It has ennobled and made purposeful millions of lives. It
offered them a future, and in doing so revived and capital-
ized all that was valuable in their past. The assertion of
nationality raised Ireland from the slough of despondency.
It roused Southern Slavs to heroic deeds. It created gallant
Belgium. It freed Greece. It gave us united Italy. It mani-
fested itself even among the free peoples, like the Welsh,
who had no grievance, but who gave expression to their na-
tionality through the revival of the old Cymric tongue. Each
of these peoples developed because, as Mazzini said, they
were enabled to proclaim "to the world that they also live,
think, love, and labor for the benefit of all." 86
NATION AND NATIONALITY
The difference between a nation and a nationality is clear;
but it is not always observed. Likeness between members is
the essence of nationality; but the members of a nation may
be very different. A nation may be composed of many na-
tionalities, as some of the most successful nations are. An
instance of this is the British nation, with its division into
English, Scotch, Welsh, and Irish at home; with the French
in Canada; and throughout the Empire, scores of other
nationalities. Other examples are furnished by the Swiss
nation with its German, French, and Italian sections; by the
Belgian nation composed of Flemings and Walloons; and
by the American nation which comprises nearly all the
86 See also Individuality of Peoples, Jewish Individuality.
Justice Ttrandeis 1 4 1
white nationalities. The unity of a nationality is a fact of
nature; the unification into a nation is largely the work of
man. The false doctrine that nation and nationality must
be made coextensive is the cause of some of our greatest
tragedies. It is, in large part, the cause also of the present
war. 87 It has led, on the one hand, to cruel, futile attempts
at enforced assimilation, like the Russianizing of Finland
and Poland, and the Prussianizing of Posen, Schleswig-Hol-
stein, and Alsace-Lorraine. It has led, on the other hand, to
those Panistic movements which are a cloak for territorial
ambitions. As a nation may develop though composed of
many nationalities, so a nationality may develop though
forming parts of several nations. The essential in either case
is recognition of the equal rights of each nationality.
NATURE OF LAW
Few laws are of universal application. It is the nature of
our law that it has dealt, not with man in general, but with
him in relationship.
NEUTRALITY
[ 320] Neutrality is at times a graver sin than belligerence. 88
NEW DEMANDS FOR JUSTICE
The great development of agencies now furnishing coun-
try-wide distribution of news, the vastness of our territory,
and improvements in the means of transmitting intelli-
gence, have made it possible for a news agency or newspa-
pers to obtain, without paying compensation, the fruit of
another's efforts and to use news so obtained gainfully in
competition with the original collector. The injustice of
such action is obvious. But to give relief against it would
involve more than the application of existing rules of law to
new facts. It would require the making of a new rule in anal-
87 World War I.
88 See Chosen People.
142* the words of
ogy to existing ones. The unwritten law possesses capacity
for growth; and has often satisfied new demands for justice
by invoking analogies or by expanding a rule or principle.
This process has been in the main wisely applied and should
not be discontinued. Where the problem is relatively sim-
ple, as it is apt to be when private interests only are involved,
it generally proves adequate. But with the increasing com-
plexity of society, the public interest tends to become omni-
present; and the problems presented by new demands for
justice cease to be simple. Then the creation or recognition
by courts of a new private right may work serious injury to
the general public; unless the boundaries of the right are
definitely established and wisely guarded. In order to recon-
cile the new private right with the public interest, it may be
necessary to prescribe limitations and rules for its enjoy-
ment; and also to provide administrative machinery for en-
forcing the rules. It is largely for this reason that, in the
effort to meet the many new demands for justice incident
to a rapidly changing civilization, resort to legislation has
latterly been had with increasing frequency.
NEW FREEDOM
Break the control . . . exercised by the investment bank-
ers over railroads, public-service, and industrial corporations,
over banks, life insurance and trust companies, and a long
step will have been taken toward attainment of the New
Freedom. 89 #
Give men a free field. Provide equality of opportunity and
we attain the New Freedom, 90
NOBLESSE OBLIGE
We have also an immediate and more pressing duty in the
performance of which Zionism alone seems capable of af-
89 See Interlocking Directorates.
90 See Equality of Opportunity.
Justice 'Brandeis i 43
fording effective aid. We must protect America and our-
selves from demoralization, which has to some extent al-
ready set in among American Jews. The cause of this demor-
alization is clear. It results in large part from the fact that in
our land of liberty all the restraints by which the Jews were
protected in their Ghettos were removed and a new genera-
tion left without necessary moral and spiritual support. And
is it not equally clear what the only possible remedy is? It is
the laborious task of inculcating self-respect, a task which
can be accomplished only by restoring the ties of the Jew
to the noble past of his race, and by making him realize the
possibilities of a no less glorious future. The sole bulwark
against demoralization is to develop in each new generation
of Jews in America the sense of noblesse oblige. That spirit
can be developed in those who regard their people as des-
tined to live and to live with a bright future. That spirit can
best be developed by actively participating in some way in
furthering the ideals of the Jewish renaissance; and this
can be done effectively only through furthering the Zionist
movement* 1
ONE LIFE TO LIVE
[325] I have only one life to live and it's short enough.
Why waste it on things that I don't want most? And I don't
want money or property most. I want to be free.
ONE MASTER ONLY
There is great strength in serving with singleness of pur-
pose one master only.
OPEN OPPORTUNITY
What America needs is not that we do anything for these,
our fellow citizens, but that we keep open the path of
opportunity to enable them to do for themselves.
S1 See also American Jewish Community, Zionism.
144* t b e words of
ORGANIZATION
Man's work often outruns the capacity of the individual
man; and no matter how good the organization, the capacity
of an individual man usually determines the success or fail-
ure of a particular enterprise not only financially to the
owners but in service to the community. Organization can
do much to make concerns more efficient. Organization can
do much to make larger units possible and profitable. But
the efficacy even of organization has its bounds. There is a
point where the centrifugal force necessarily exceeds the cen-
tripetal. And organization can never supply the combined
judgment, initiative, enterprise and authority which must
come from the chief executive officer. Nature sets a limit to
his possible achievement. 92
*
Organization can never be a substitute for initiative and
for judgment. 93
OUR NEW PEONAGE
[330] Half a century ago nearly every American boy could
look forward to becoming independent as a farmer or me-
chanic, in business or in professional life; and nearly every
American girl might expect to become the wife of such a
man. Today most American boys have reason to believe
that throughout life they will work in some capacity as
employees of others, either in private or public business; and
a large percentage of the women occupy like positions. This
revolutionary change has resulted from the growth of manu-
facturing and mining as compared with farming; from the
formation of trusts and other large business corporations;
from the marked increase in governmental functions; and
finally, from the invasion of women into industry.
92 See also Bigness.
9S See Capacity of Individual Man.
'Justice TSrandeis 1 4 5
PALES TI NE
The land is an inspiration to effort. It is an inspiration not
only because of its past and its associations, but because the
present urges one on to make it bloom againbloom, not
only physically, but spiritually.
PARAMOUNT PUBLIC NEED
What, at any particular time, is the paramount public
need is, necessarily, largely a matter of judgment. Hence, in
passing upon the validity of a law challenged as being unrea-
sonable, aid may be derived from the experience of other
countries and of the several states of our Union in which
the common law and its conceptions of liberty and of prop-
erty prevail.
PARENTAGE
The greatest combination of good fortune any man can
have is a parentage unusual for both brains and character.
PAST
The past is valuable as the mirror of the future.
PAST LOSSES
[335] Past losses obviously do not tend to prove present
values. The fact that a sometime losing business becomes
profitable eventually through growth of the community or
more efficient management, tends to prove merely that the
adventure was not wholly misconceived.
PATH TO BANKRUPTCY
The manufacturer who fails to recognize fire insurance,
depreciation, interest and taxes as current charges of the
business treads the path to bankruptcy. And that nation
does the like which fails to recognize and provide against the
economic, social and political conditions which impose
1 4 6 * the words of
upon the workingman so large a degree of financial de-
pendence.
PEOPLE AND RAW MATERIAL
When we come to think about it hard, and really try, how
much more rapidly we shall be able to produce results with
people than from any other form of raw material. All the
raw material from which man produces his mechanical mir-
acles is inert. But the people, as raw material, can help. They
have will.
PEOPLE AND RICH
Every act of injustice on the part of the rich will be met
by another act or many acts of injustice on the part of the
people. 94
PEOPLE'S OWN GOLD
The goose that lays golden eggs has been considered a
most valuable possession. But even more profitable is the
privilege of taking the golden eggs laid by somebody else's
goose. The investment bankers and their associates now
enjoy that privilege. They control the people through the
people's own money. If the bankers' power were commensu-
rate only with their wealth, they would have relatively little
influence on American business. Vast fortunes like those of
the Astors are no doubt regrettable. They are inconsistent
with democracy. They are unsocial. And they seem pecul-
iarly unjust when they represent largely unearned increment.
But the wealth of the Astors does not endanger political or
industrial liberty. It is insignificant in amount as compared
with the aggregate wealth of America, or even of New York
City. It lacks significance largely because its owners have
only the income from their own wealth. The Astor wealth is
static. The wealth of the Morgan associates is dynamic. The
power and the growth of power of our financial oligarchs
94 See Excesses of Capital.
Justice 'Brandeis * i 47
comes from wielding the savings and quick capital of others.
In two of the three great life insurance companies the influ-
ence of J. P. Morgan & Co. and their associates is exerted^
without any individual investment by them whatsoever.*
Even in the Equitable, where Mr. Morgan bought an actual
majority of all the outstanding stock, his investment amounts
to little more than one-half of one per cent, of the assets of
the company. The fetters which bind the people are forged
from the people's own gold. 95
POLITICIAN
[340] The politician can stand any amount of attack, but
he cannot stand the opposition of public opinion. We can-
not submit to the dishonor of being represented by those
men. We should not allow ourselves to be represented by
thieves and convicts.
POPULAR OPINION
My early associations were such as to give me greater rev-
erence than I now have for the things that are because they
are. I recall that when I began to practice law I thought it
awkward, stupid, and vulgar that a jury of twelve inexpert
men should have the power to decide. I had the greatest
respect for the Judge. I trusted only expert opinion. Experi-
ence of life has made me democratic. I began to see that
many things sanctioned by expert opinion and denounced
by popular opinion were wrong.
POSSIBILITIES OF HUMAN DEVELOPMENT
I believe that the possibilities of human advancement are
unlimited. I believe that the resources of productive enter-
prise are almost untouched, and that the world will see a
vastly increased supply of comforts, a tremendous social sur-
plus out of which the great masses will be apportioned a
degree of well-being that is now hardly dreamed of.
95 See also Banker-Middleman, Monopoly.
448* the words of
PRACTICAL MEN
Theoreticians are signposts, but the distances between
them are often best transversed by practical men.
PREPAREDNESS
"Preparedness" implies far more than adequate military
equipment and training. It implies conservation and devel-
opment of all the resources of the nation, human and mate-
rial. It implies that in industry and in agriculture there will
be constant effort to improve the methods and means of
production and distribution. It implies that men and women
will be trained for the vocations they are to pursue, and that
opportunity shall exist to make their labor effective. It im-
plies that conditions of living, as of work, shall be such that
every American citizen may, throughout life, be fit to per-
form the duties of citizenship, and that he may, by partici-
pation in its privileges, learn to understand American ideals
and become eager to cooperate for their attainment.
PRICE CONTROL
[345] The denial of the right to establish standard prices
results in granting a privilege to the big concerns; a discrimi-
nation in favor of the rich and powerful as against the small
man; for the concern with large capital, as the powerful
trusts, can secure adherence to the standard price while the
small manufacturer or producer can not. The small man
needs the protection of the law; but the law becomes the
instrument by which he is destroyed.
PRIVATE CITIZEN
The most important office and the one which all of us can
and should fill is that of private citizen. The duties of the
office of private citizen cannot under a republican f orm of
government be neglected without serious injury to the
public.
Justice Krandeis * i49
PRODUCTION
It is one of the greatest economic errors to put any limi-
tation upon production.
PRODUCTS OF THE MIND
The fact that a product of the mind has cost its producer
money and labor, and has a value for which others are will-
ing to pay, is not sufficient to ensure to it this legal attribute
of property. The general rule of law is, that the noblest of
human productions knowledge, truths ascertained, concep-
tions, and ideas become, after voluntary communication to
others, free as the air to common use. Upon these incor-
poreal productions the attribute of property is continued
after such communication only in certain classes of cases
where public policy has seemed to demand it. These excep-
tions are confined to productions which, in some degree, in-
volve creation, invention, or discovery. But by no means all
such are endowed with this attribute of property.
PROFIT SHARING
To a greater or less extent in small business the owners
are beginning to recognize that there is but one principle by
which lasting success can be attained, and it is this: Those
who do the work shall get in some fair proportion what they
produce. The share to which capital as such is entitled is
small. All the rest should go to those, high and low, who do
the work.
PROGRESS
[350] Progress flows only from struggle. 96
PROPER CONFERENCES
Nine-tenths of the serious controversies which arise in life
result from misunderstanding, result from one man not
knowing the facts which to the other man seem important,
96 See Monopoly.
150- the words of
or otherwise failing to appreciate his point of view. A prop-
erly conducted conference involves a frank disclosure of
such facts patient, careful argument, willingness to listen
and to consider. 97
Bluff and bluster have no place there. The spirit must be,
"Come, let us reason together." Such a conference is impos-
sible where the employer clings to the archaic belief com-
monly expressed in the words, "This is my business, and I
will run it as I please/ 7 It is impossible where the labor rep-
resentative, swaggering in his power to inflict injury by strike
and boycott, is seeking an unfair advantage of the employ-
ers, or would seek to maintain even a proper position by
improper means. Such conferences will succeed only if em-
ployer and employee recognize that, even if v there be no
so-called system of profit-sharing, they are in a most impor-
tant sense partners, and that each is entitled to a patient
hearing, with a mind as open as the prejudice of self-interest
permits. 98
PROPERTY
Property must be subject to that control of property
which is essential to the enjoyment by every man of a free
individual life. And when property is used to interfere with
that fundamental freedom of life for which property is only
a means, then property must be controlled. This applies to
the regulation of trusts and railroads, public utilities and all
the big industries that control the necessities of life. Laws
regulating them, far from being infringements on liberty, are
in reality protections against infringements on liberty.
*
Property is only a means. It has been a frequent error of
our courts that they have made the means an end. Once
correct that error, put property back into its right place,
97 Repeated under Employer and Employee, Serious Controversies.
98 See Employer and Employee.
'Justice 'Brandeis * i 5 1
and the whole social-legal conception becomes at once con-
sistent.
PROPRIETY
To publish of a modest and retiring individual that he
suffers from an impediment in his speech or that he cannot
spell correctly, is an unwarranted, if not an unexampled, in-
fringement of his rights, while to state and comment on
the same characteristics found in a would-be congressman
could not be regarded as beyond the pale of propriety. 9 *
PUBLIC INTERESTS
[355] Private interests will always be and should properly
be active in presenting to legislators what they deem to be
required for the protection of the enterprises they represent.
But it is essential to just and safe legislation that the inter-
ests of the public should also be specifically and ably repre-
sented.
PUBLICITY
Publicity is justly commended as a remedy for social and
industrial diseases. Sunlight is said to be the best of disin-
fectants; electric light the most efficient policeman.
PUBLIC OPINION
We need intelligent public opinion. I don't mean the
periodic, spasmodic indignation at wrong. That won't give
us good government. It is necessary to force the people to
think of this corruption and the great need of action for the
public good.
PUBLIC SERVICE
Some men buy diamonds and rare works of art. Others
delight in autos and yachts. My luxury is to invest my sur-
plus effort, beyond that required for the proper support of
m See also Blighting Influence of Journalistic Gossip.
i 5 2 the words of
my family, to the pleasure of taking up a public problem and
solving, or helping to solve, it for the people without receiv-
ing any compensation. Your yachtsman or automobilist
would lose much of his enjoyment if he were obliged to do
for pay what he is doing for the love of the thing itself. So I
should lose much of my satisfaction if I were paid in connec-
tion with public services of this kind.
PUNCTUALITY
Generally speaking I should say that a human being who
cannot organize himself so as to keep his appointments on
time is an unorganized human being. And I do not believe
that anybody or anything is at his best when in a state of
disorganization. People think that poets and philosophers
are notoriously absent-minded, forgetful, and disarranged.
Well they may be absent-minded and forgetful, but not dis-
arranged. There is a pattern of organization in Dante's
Divine Comedy and Kant's Critique of Pure Reason which
any construction engineer might envy and emulate.
PURITANS
[360] Democratic ideals cannot be attained through em-
phasis merely upon the rights of man. Even a recognition
that every right has a correlative duty will not meet the
needs of democracy. Duty must be accepted as the domi-
nant conception in life. Such were the conditions in the
early days of the Colonies and states of New England, when
American democracy reached there its fullest expression; for
the Puritans were trained in implicit obedience to stern duty
by constant study of the Prophets. 1
QUALITY AND SPIRITUAL VALUE
The growth of the future at least of the immediate fu-
turemust be in quality and spiritual value. 2
1 See Jews and Democracy.
2 Repeated under Small Groups.
Justice 'Brandeis * 4 5 3
RADICALS AND CONSERVATIVES
Radicals who would take us back to the roots of things
often fail because they disregard the fruit Time has pro-
duced and preserved. Conservatives fail because they would
preserve even what Time has decomposed.
RATE- MAKING
The expense and loss now incident to recurrent rate con-
troversies is also very large. The most serious vice of the
present rule for fixing the rate base is not the existing uncer-
tainty; but that the method does not lead -to certainty. Un-
der it, the value for rate-making purposes must ever be an
unstable factor. Instability is a standing menace of renewed
controversy. The direct expense to the utility of maintaining
an army of experts and of counsel is appalling. The indirect
cost is far greater. The attention of officials high and low is,
necessarily, diverted from the constructive tasks of efficient
operation and of development. The public relations of the
utility to the community are apt to become more and more
strained. And a victory for the utility may, in the end, prove
more disastrous than defeat would have been. The com-
munity defeated, but unconvinced, remembers; and may
refuse aid when the company has occasion later to require
its consent or cooperation in the conduct and development
of its enterprise. Controversy with utilities is obviously in-
jurious also to the public interest. The prime needs of the
community are that facilities be ample and that rates be as
low and as stable as possible. The community can get cheap
service from private companies only through cheap capital.
It can get efficient service only if managers of the utility are
free to devote themselves to problems of operation and of
development. It can get ample service through private com-
panies only if investors may be assured of receiving continu-
ously a fair return upon the investment.
READING
Remember that even if you are able to read a good booi
and understand it, even this is not all; you must think of it
after you have ceased reading, and not allow your mind to
be immediately taken up by your own little petty affairs the
moment you set the book aside. To profit by what you read
not only concentration of mind is necessary whilst reading
but after thought.
REGULATED COMPETITION
[ 365] Shall we abandon as obsolete the long-cherished pol-
icy of competition, and accept in its place the long-detested
policy of monopoly? The issue is not (as it is usually stated
by advocates of monopoly), "Shall we have unrestricted
competition or regulated monopoly?" It is "Shall we have
regulated competition or regulated monopoly?''
Regulation is essential to the preservation and develop-
ment of competition, just as it is necessary to the preserva-
tion and best development of liberty. We have long curbed
the physically strong, to protect those physically weaker.
More recently we have extended such prohibitions to busi-
ness. We have restricted theoretical freedom of contract by
factory laws. The liberty of the merchant and manufacturer
to lie in trade, expressed in the fine phrase of caveat emptor,
is yielding to the better conceptions of business ethics, be-
fore pure-food laws and postal-fraud prosecutions. Similarly,
the right to competition must be limited in order to pre-
serve it. For excesses of competition lead to monopoly, as
excesses of liberty lead to absolutism. The extremes meet. 3
The issue, therefore, is: Regulated competition versus reg-
ulated monopoly. The policy of regulated competition is
distinctly a constructive policy. It is the policy of develop-
3 See Excesses.
Justice T$ r a n d e i s * 1 5 5
merit as distinguished from the destructive policy of private
monopoly. 4
REGULATION
The policy of regulating public-service companies is
sound, but it must not be overworked. The scope of any
possible effective regulation of an interstate railroad, either
by Federal or by State commissions, is limited to a relatively
narrow sphere. Regulation may prevent positive abuses, like
discriminations, or excessive rates. Regulation may prevent
persistent disregard of definite public demands, like that for
specific trains or for stops at certain stations. Regulation
may compel the correction of definite evils, like the use of
unsanitary cars. But regulation cannot make inefficient busi-
ness efficient. Regulation cannot convert a poorly managed
railroad into a well-managed railroad. Regulation cannot
supply initiative or energy. Regulation cannot infuse into
railroad executives the will to please the people. Regulation
cannot overcome the anaemia or wasting-sickness which at-
tends monopoly. Regulation may curb, but it cannot de-
velop the action of railroad officials.
REMEDIAL INSTITUTIONS
Refuse to accept as inevitable any evil in business (i.e. 9
irregularity of employment) . Refuse to tolerate any immoral
practice (e.g., espionage). But do not believe that you can
find a universal remedy for evil conditions or immoral prac-
tices in effecting a fundamental change in society (as by
State Socialism) . 5 And do not pin too much faith in legisla-
tion. Remedial institutions are apt to fall under the control
of the enemy and to become instruments of oppression. 6
4 See also Competition, Monopoly.
6 Repeated under Socialism.
6 See also Socialism.
156* the words of
RESETTLEMENT OF PALESTINE
Palestine is being resettled by Jews. The resettlement has
been largely the result of deliberate plans carried out through
collective action. Men have differed concerning the wisdom
of the Zionist movement. Men differ still in their predictions
as to its results. But there is substantial agreement, among
Jews and among non-Jews, that the resettlement is an event
of historic significance. To students of history the subject is
one of special interest because of the nature of the problem
and the means employed.
RESPONSIBILITY
The great developer is responsibility. Hence no remedy
can be hopeful which does not devolve upon the workers
participation in responsibility for the conduct of business;
and their aim should be the eventual assumption of full
responsibilityas in cooperative enterprises. This participa-
tion in and eventual control of industry is likewise an essen-
tial of obtaining justice in distributing the fruits of indus-
by.'
RESURRECTION
[370] Resurrection is a dogma, if it is that, that I should
rather not discuss. I know how we love our precious little
body, how much attentions some bestow upon it, and how
loath we are to part from it, if part we do. I am not un-
acquainted with the weakness of man and his conceitedness,
and I can understand that in the infancy of the race he was
impelled to mistake death for a long sleep. But that human
beings should be under the illusion to this day attests both
the deep darkness in the human mind and the failure of edu-
cation and science. Of all the crude beliefs which we inher-
ited from the past I regard this one as the least worthy of
the Jewish people. There is no reason why a Jew who be-
7 See also Labor's Share.
justice ~B r a n d e i s -457
lieves in the resurrection of the dead should not also
believe in devils and angels, and in magic and astrology
as well.
REVELATION
I have never been able to find out what the theologians
mean by revelation. The Biblical account of what happened
on Mount Sinai I think I understand, for it is simple, naive,
anthropomorphic, and primitive. In that account the dis-
tance between man and God vanishes. Moses and God are
in close proximity. They are both on the top of the moun-
tain, speak to each other, and together speak to the people.
God's voice is quite naturally the stronger, more like a peal
of thunder than a human voice, so much so that it terrifies
the people.
But God speaks with a voice. And a voice implies organs
producing it. That is, something material and tangible as is
an image or a picture. True, in later ages, when the effort
was made to establish the incorporeality of God as a dogma,
Jews were urged to remember that they saw no picture at
Sinai and had heard only a voice speaking from the midst of
a fire. This, to my mind, means only that in those ages men
were in a quandary. On the one hand they insisted that God
was immaterial and on the other that He had communi-
cated with man or could do so at His will. To extricate
themselves from embarrassment various compromises were
attempted. At first, man's sense of hearing was favored over
against his sense of seeing, the act of hearing having been
apparently regarded as supersensual, as was the act of speak-
ing. Later "hearing" was replaced by thinking and feeling
as induced by emanations from God.
I have not read much of the literature that I understand
is extant on emanation or emanations. But from the little
that I did read and from what I have gathered in conversa-
tion I am satisfied that the theologians have not been sue-
158- the words of
cessful in bridging the gap between the insubstantial and
the substantial. Nor, does it seem to me, have they gotten
anywhere with their attempts to explain "thinking and feel-
ing" as nonmaterial functions. If the body and brain do not
do the thinking and feeling then I do not know what does.
The account of revelation on Sinai makes more sense. It
is more "factual/' That is, it records without sophistication
what the people actually believed. It made God human. It
located Him on a mountain and made Him speak and write,
all as it did in the case of Moses. This is quite clear to me,
and this is quite obviously a folktale as are many other
Biblical accounts.
The theologians would get farther with most thinking
men by acknowledging that these folktales are a strain on
their faith than by rationalizing them into incomprehensi-
bility.
Yes, I heard of "continued revelation." But what does it
mean? Isn't it another attempt to conceal embarrassments?
The theologian finds it extremely difficult to explain why
God should have spoken to a few generations of men and
then have stopped, particularly so since they cannot agree
among themselves as to whom He spoke and what it was He
really said. So they take their chance with continued revela-
tion. But if God speaks today to all men as He did three
thousand years ago to Moses then His speaking to Moses
ceases to be unique or of any particular significance, and, it
would seem to me, can no longer be set down as an article
of faith.
I am impressed with the fact that the burden and con-
tent of the old revelations were legal codes. It proves that
ancient man understood that but for law human society
could not endure. But these legal codes certainly constitute
no proof of revelation. In the first place, they suffer from
very serious imperfections, from the imperfections to which
all human efforts are subject. In the second place, the pro-
Justice 'Brandeis -159
ponents of continued revelation are horrified at the sugges-
tion that the Mesopotamian codes were revealed.
REVOLUTIONARY CHANGE
Revolutionary change in industrial control and manage-
ment should be voluntary, not compulsory.
RIGHT TO PRIVACY
The protection of society must come mainly through a
recognition of the rights of the individual. Each man is re-
sponsible for his own acts and omissions only. If he con-
dones what he reprobates, with a weapon at hand equal to
his defense, he is responsible for the results. If he resists,
public opinion will rally to his support. Has he then such a
weapon? It is believed that the common law provides him
with one, forged in the slow fire of the centuries, and today
fitly tempered to his hand. The common law has always
recognized a man's house as his castle, impregnable, often
even to its own officers engaged in the execution of its com-
mands. Shall the courts thus close the front entrance to
constituted authority, and open wide the back door to idle
or prurient curiosity? 8
RISKS
To take risks is the very essence of Jewish life, that is, to
take necessary risks. The wise man seeks not to avoid but
to minimize risks.
THEODORE ROOSEVELT AND WOODROW WILSON
[375] President [Theodore] Roosevelt spoke forcefully and
persuasively on liberal issues. President Wilson spoke logi-
cally and convincingly,
RULE OF LAW
It is usually more important that a rule of law be settled,
than that it be settled right. Even where the error in declar-
8 See also Blighting Influence of Journalistic Gossip
i 5 o the words of
ing the rule is a matter of serious concern, it is ordinarily
better to seek correction by legislation.
SABBATH
In the home of my parents there was no Jewish Sabbath,
nor in my own home. But I recall vividly the joy and awe
with which my uncle, Lewis Dembitz, welcomed the arrival
of the day and the piety with which he observed it. I remem-
ber the extra delicacies, lighting of the candles, prayers over
a cup of wine ? quaint chants, and Uncle Lewis poring over
books most of the day. I remember more particularly an
elusive something about him which was spoken of as the
"Sabbath peace" and which years later brought to my mind
a passage from Addison in which he speaks of stealing a day
out of life to live. That elusive something prevailed in many
a home in Boston on a Sunday and was not wanting at Har-
vard on the same day. Uncle Lewis used to say that he was
enjoying a foretaste of heaven. I used to think, and do so
now, that we need on earth the Jewish-Puritan Sabbath
without its oppressive restrictions.
SAVINGS BANK INSURANCE
What we want is to have the workingman free; not to
have him the beneficiary of a benevolent employer, and
freedom demands a development in the employees of that
self-control which results in thrift and in adequate provision
for the future. The development of our savings banks and
savings bank insurance will be effective in this direction.
SCIENTIFIC MANAGEMENT 8
We hear a great deal about inequality in the distribution
of wealth or the profits of industry. Such inequality exists,
but it is clear that even if there were a perfectly fair distribu-
tion, our ideals could not be attained unless we succeeded
in greatly increasing the productivity of man. Perhaps the
9 See also Efficiency.
Justice 'B r a n d e i s i 6 t
greatest evil attendant upon this existing inequality is that
it tends to discontent, which in turn discourages effort and
therefore impairs productivity. Such progress as we have
made in improving the condition of the workingmen during
the last century, and particularly during the last fifty years,
has been made possible by invention, by the introduction
of machinery, through which the productivity of the indi-
vidual man has been greatly increased. The misfortune is
that when this method of increasing the productivity of man
was introduced, labor did not get the share of the increased
profit to which it was entitled. With the advent of the new
science of management has come the next great opportunity
for labor; and it seems to me of the utmost importance, not
only that this science should be developed and should be
applied as far as possible, but that it should be applied in
cooperation with the representatives of organized labor, in
order that labor may through this movement get its proper
share in the proceeds of industry.
I take it that this science of management is nothing more
than an organized effort, pursued intensively, to eliminate
waste. The efficiency experts tell us how this may be done.
The experts make the individual detailed study, which is an
essential of the elimination of waste. But, after all, the fun-
damental problems are social and industrial. You cannot
eliminate waste unless you secure the cooperation of the
worker, and you cannot secure his cooperation unless he is
satisfied that there is a fair distribution of profits. 10
[380] Scientific management is merely an application to
business of those methods which have been pursued in other
branches of science, to discover the best and the most effec-
tive methods of accomplishing a result. Scientific manage-
ment does not mean making men work harder. Its every
10 See also Labor's Share.
i 62 the words of
effort is to make them work less hard; to accomplish more
by the same amount of effort, and to eliminate all unneces-
sary motions; to educate them so as to make them more
effective; to give special assistance to those who when enter-
ing upon their work are most in need of assistance, because
they are least competent.
*
The great fact to remember is this. The coming science of
management, in this century, marks an advance comparable
only to that made by the coming of the machine in the last.
The profits from the machine were absorbed by capital. But
we have developed a social sense. And now of the profits
that are to come from the new scientific management, the
people are to have their share. These profits are to be im-
mense. On our railroads alone at least a million dollars a day
might be saved by this kind of management. Not all the
material resources in our land can compare to this prodi-
gious field, the possibilities of the science which will increase
the efficiency of man. And this public domain must not be
preempted. 11
SCIENTISTS AND THEOLOGIANS
The fellow scientist of a Newton has, as a rule, advanced
his findings. But theologians have altogether too often con-
fused and mystified the revelations of the great religious
teachers, and consequently retarded the good that those
revelations aimed to achieve.
SECURITIES
Among the most important facts to be learned for deter-
mining the real value of a security is the amount of water
it contains. And any excessive amount paid to the banker
for marketing a security is water.
11 See also Efficiency.
Justice "Brandeis i 63
SEPARATION OF GOVERNMENTAL POWERS
The development of our financial oligarchy followed, in
this respect, lines with which the history of political despot-
ism has familiarized us: usurpation, proceeding by gradual
encroachment rather than by violent acts; subtle and often
long-concealed concentration of distinct functions, which
are beneficent when separately administered, and dangerous
only when combined in the same persons. It was by proc-
esses such as these that Caesar Augustus became master of
Rome. The makers of our own Constitution had in mind
like dangers to our political liberty when they provided so
carefully for the separation of governmental powers.
SERIOUS CONTROVERSIES
[385] Nine-tenths of the serious controversies which arise
in life result from misunderstanding, result from one man
not knowing the facts which to the other man seem impor-
tant, or otherwise failing to appreciate his point of view. A
properly conducted conference involves a frank disclosure of
such facts patient, careful argument, willingness to listen
and to consider. 12
SERVICE VS. CHARITY
The greatest happiness in life is not to donate but to serve.
SHERMAN LAW
The moment that you endeavor by a combination of
superior power to close the field to competition or to re-
strict individual effort; the moment you take away from the
people that protection which comes from the incentive in
the individual to create, and from the opportunity of the
customer to discriminate in his purchases (as you do when
you close the avenues of competition) then a grave dan-
ger arises to progress in industry and to the general welfare;;
12 See Employer and Employee, Proper Conferences.
1 64 the words of
and it is against such danger that the Sherman Law was
appropriately directed. ... It seeks to protect the small
man against the powerful trust, against the capitalistic com-
bination.
The Sherman Law seeks to protect men in the right freely
to compete and to prevent practices which must result in
suppressing competition. It seeks to preserve to the indi-
vidual both the opportunity and the incentive to create, it
seeks to encourage individual effort; and a right in the indi-
vidual manufacturer of a competitive business to market his
goods in his own way, by fixing, if he desires, the selling-
price to the consumer, is in entire harmony with the under-
lying purposes of the Sherman Law. But when men combine
to form a monopoly, or control a particular line or branch
of trade, however good may be their intentions, they neces-
sarily curb individual effort. Under the fundamental laws of
human nature and of trade they withdraw incentive from
those who enjoy the monopoly, and they narrow the field
of human effort by confining leadership to a comparatively
few individuals.
And even where a complete monopoly does not exist, a
powerful combination makes it so difficult for others to
enter the field that most men are practically barred by the
great chances of failure from entering upon so unequal a
contest. It is against such conditions that the Sherman Law
was directed. That is, the true restraint of trade restraint
through monopoly or combinations tending to monopoly, a
condition under which business success is at best tempo-
rary, is often delusive, and is always purchased at the expense
of the community. 13
SHORT CUTS
There are no short cuts in evolution.
13 See also Competition, Monopoly.
Justice 'Brandeis l 65
SHORT WORKDAY 14
History, which has illustrated the deterioration due to
long hours, bears witness no less clearly to the regeneration
due to the shorter working day. To the individual and to
society alike, shorter hours have been a benefit wherever
introduced. The married and unmarried working woman is
enabled to obtain the decencies of life outside of working
hours. With the improvement in home life, the tone of the
entire community is raised. 15 Wherever sufficient time has
elapsed since the establishment of the shorter working day,
the succeeding generation has shown extraordinary improve-
ment in physique and morals.
*
[390] The regulation of the working day has acted as a
stimulus to improvement in the processes of manufacture.
Invention of new machinery and perfection of old methods
have followed the introduction of shorter hours.
To the preservation of freshness of mind a short workday
is as essential as adequate food and proper conditions of
working and of living. The worker must, in other words,
have leisure.
SINFUL WASTE
Irregularity of employment creates hardships and demor-
alization of every kind. It is the most sinful waste. 16
SKILLED AND UNSKILLED LABOR
It has been clearly demonstrated, I think, by those who
have studied the possible efficiencies and economies in labor,
that the distinction between skilled and unskilled is wholly
14 See also Leisure, Long Hours.
15 See Home Life.
16 See Irregularity of Employment.
166* the words of
unscientific and unphilosopliicaL There certainly is nothing
that could be deemed to be nearer an unskilled occupation
than lifting a pig of iron from the yard and putting it into a
car; and yet it has been demonstrated by a study of that par-
ticular operation that it was possible with the same amount
of exertion., or less, to produce four times the former results
by knowing how to do it, by selecting the proper man to do
it, by teaching him how to do it, and particularly by teach-
ing him how to rest when he was not actually under load.
Now, what is true of the loading of pig iron has been shown
to be true of other occupations which are constantly called
unskilled, such as the mere shoveling of coal or the mere
shoveling of dirt. You could pass through the whole realm
of human, manual occupation and find that the difference
between the man who is skilled and the man who is un-
skilled is not in the occupation but is in the man and in the
training of men. And in the same way the performance will
be largely dependent not only upon skill but upon the physi-
cal and mental condition of the individual.
SMALL GROUPS
The great America for which we long is unattainable un-
less the individuality of communities becomes far more
highly developed and becomes a common American phe-
nomenon. For a century our growth has come through natu-
ral expansion and the increase of the functions of the fed-
eral government. The growth of the future at least of the
immediate futuremust be in quality and spiritual value. 11
And that can come only through the concentrated, intensi-
fied strivings of smaller groups.
SMALL STOCKHOLDERS
[ 395] Numerous small stockholding creates in the corpora-
tion a condition of irresponsible absentee landlordism; that
17 See Quality and Spiritual Value.
Justice "Brandeis l 67
is, the numerous small stockholders in the steel corporation,
in the tobacco company, and in the other trusts occupy a
position which is dangerous to society. They have a certain
degree of wealth without responsibility. Their only desire is
dividends. Their demand upon the managers is at most to
maintain or increase the dividends. They have no power or
responsibility; they have no relations to the employees; they
are remote, often thousands of miles from the people who
are toiling for them. Thus we have reproduced in industry
the precise conditions which brought all the misery upon
Ireland and upon other countries where absentee landlord-
ism has prevailed. Large dividends are the bribes which the
managers tender the small investor for the power to use
other people's money.
SOCIAL INVENTIONS
The reason why we have not made more progress in social
matters is that these problems have not been tackled by the
practical men of high ability, like those who have worked on
industrial inventions and enterprises. We need social inven-
tions, each of many able men adding his work until the in-
vention is perfected.
SOCIALISM
The talk of the agitator alone does not advance socialism
a step; but the formation of great truststhe huge railroad
consolidations the insurance "racers" with the attendant
rapacity or the dishonesty of their potent managers, and
their frequent corruption of councils and legislatures is
hastening us almost irresistibly into socialistic measures. The
great captains of industry and of finance, who profess the
greatest horror of the extension of governmental functions,
.are the chief makers of socialism. Socialistic thinkers smile
approvingly at the operations of Morgan, Perkins and Rocke-
feller, and of the Hydes, McCalls and McCurdys. They see
468* the words of
approaching the glad day when monopoly shall have brought
all industry and finance under a single head, so that with the
cutting of a single neck, as Nero vainly wished for his Chris-
tian subjects, destruction of the enemy may be accom-
plished. Our great trust-building, trust-abusing capitalists
have in their selfish shortsightedness become the makers of
socialism, proclaiming by their acts, like the nobles of
France, "After us, The Deluge!" 18
*
Do not believe that you can find a universal remedy for
evil conditions or immoral practices in effecting a funda-
mental change in society (as by State Socialism). 19
SOCIAL PROBLEMS AND SCIENTIFIC
INVENTIONS
When men begin to think as hard, as intensely, about
their social problems as they have thought about automo-
biles, aeroplanes, and wireless telegraphy, nothing will be
socially impossible. Many things which have seemed inevi-
table will be seen to have been quite unnecessary.
SOLVING THE JEWISH PROBLEM
[400] The Jews are a people of thinkers; and they have a
passion for freedom. If we acquiesce in decisions made for
us and not by us, it can only be because we are practically
indifferent; because we do not care, or at all events, do not
care enough to assert our views, we certainly shall not care
enough to make the sacrifices necessarily involved in saving
our brethren, and solving the problem of the Jewish people.
SOUNDNESS OF JUDGMENT
Soundness of judgment is easily obscured by self-interest.
18 See also Monopoly, Remedial Institutions.
19 See Remedial Institutions.
Justice "Brandeis i 69
SPECIALIZATION
The more complex life becomes the more we shall have
to depend on the specialist. The day when any one human
being could claim to be master of all knowledge is long past.
Any field of learning is by now probably coextensive with
that of all the humanities together of two or three hundred
years ago. Today Dr. Einstein presumably knows as little
about law as does Professor Roscoe Pound about nuclear
physics. But since, in order to solve our problems, we must
understand both the nature of law and the universe, the
Einsteins and the Pounds must understand each other. But
how is that to be accomplished? I believe there is only one
way of doing it, and that is, postponing the age at which a
student is permitted to begin working seriously on his own
specialty. I would require of everyone who wished to pursue
any one of the professions, arts, or sciences, an eight year
college course, which would familiarize him with the major
outlines of civilization, so that the specialties not his own
might not be altogether alien to him. The span of life is in-
creasing, and an additional four years of preparation should
not be regarded as too great a sacrifice.
STRIKES
Labor cannot on any terms surrender the right to strike.
In last resort, it is its sole effective means of protest. The old
common law, which assures the employer the right to dis-
charge and the employee the right to quit work, for any
reason or for no reason in either case, is a necessary guaranty
of "industrial liberty. 20
STRUGGLE
Struggle ... is a law of life. Must we not fight, all of us,
even for the peace that we most crave?
20 See also Unions.
170** the words of
SUCCESS BUILT ON FAILURE
[405] We are prone to think of America as the home of
good investments. But nobody who has looked into Ameri-
can industrial and financial development can fail to know
that, with the exception perhaps of the automobile and a
few other recent industries, there has been hardly a single
field of great business success in the United States, which
does not rest on a foundation of failures. Almost every enter-
prise in the United States, with the exception of the Great
Northern, is built upon a failure. The Atchison, Topeka,
Santa Fe, and the Northern Pacific are outstanding in-
stances of successful American railroads. But despite the
rich land grants made by the government, both the Atchi-
son and the Northern Pacific went through two receiver-
ships. Stockholders and bondholders who lacked faith to
pay burdensome assessments, or were unable to do so, lost
all or much of what they personally had invested. This is
true also of the original investors in the heavily subsidized
Union Pacific. Most of America's 250,000 miles of railroad
have a similar history. But they were great factors in our
prosperity. When we think now of American successes, we
think not of our beginnings but of the flowers in full bloom.
SUPPLY AND DEMAND
Of course, there isn't any such thing as a law of supply
and demand as an inexorable rule. It is an economic tend-
ency, a highly important one, and one of the most impor-
tant of the economic forces; but all the time we see that
there are conditions under which the law of supply and
demand does not work.
TEACHERS
Teachers are largely a meek, downtrodden, unappreci-
ated body of men. To know that others believe in them,
consider them capable of high thinking and doing, and are
Justice T$ r a n d e i s i? i
willing to help them out -may enable them to accomplish
more than even they think possible.
TESTING A FACT
No statement of facts, however honest your people may
be, can be relied upon until it has been subjected to the
careful study and criticism of people who have a different
point of view.
THINKING
Thinking is not a heaven-born thing . . . intelligence is
not a gift that merely comes. It is a gift men make and
women make for themselves. It is earned, and it is earned
by effort There is no effort, to my mind, that is comparable
in its qualities, that is so taxing to the individual, as to
think, to analyze fundamentally. 21
*
[410] To think hard and persistently is painful. 22
TRANSPORTATION
Transportation is one of the privileges which places the
greatest restraint in favor of a few upon a large number of
the American business men. It has been said sometimes that
you cannot follow up any industrial monopoly today with-
out finding that some unjust and preferential transporta-
tion privilege accounts in large measure for the power pos-
sessed. . . .
Privilege, preference, discrimination in favor of very large
and powerful interests in the transportation field have been
the main causes of the overweening growth of a few con-
cerns as compared with the more struggling growth of many
others.
21 See Industrial Democracy and Thinking.
22 See Human Nature.
172- the words of
TRIAL AND ERROR
The discoveries in physical science, the triumphs of in-
vention, attest the value of the process of trial and error. 23
TRIVIALITY
Triviality destroys at once robustness of thought and deli-
cacy of feeling. No enthusiasm can flourish, no generous
impulse can survive under its blighting influence. 24
TRUSTEE OF HISTORY
It is not wealth, it is not station, it is not social standing
and ambition, which can make us worthy of the Jewish
name, of the Jewish heritage. To be worthy of them, we
must live up to and with them. We must regard ourselves
as their custodians. Every young man here must feel that he
is the trustee of what is best in Jewish history. 25
UNCHARTED SEAS
[415] The economic and social sciences are largely un-
charted seas. 26
UNEMPLOYMENT
Unemployment perhaps the gravest and most difficult
problem of modern industry.
Unemployment is as unnecessary as disease epidemics.
One who says in this intelligent age that unemployment is
necessary or unavoidable is like one a generation ago who
would have continued to insist that epidemics were, if not
necessary and divinely imposed, at least inevitable.
23 See Experimentation.
24 See Blighting Influence of Journalistic Gossip.
25 See Jewish Heritage.
56 See Experimentation.
Justice ftrandeis 1 7 3
UNIONISM
The essence of unionism is collective bargaining; that is,
instead of the employer dealing individually with each em-
ployee, he deals with a large body through their representa-
tives, in respect to the rate of wages and the hours and
conditions of employment.
UNION LEADERS
Abuses of the trade unions have been innumerable. Indi-
viduals of slight education, of slight training, are elevated
many times by shallow popularity to positions which can
be filled adequately only by men possessing great minds and
great characters. No wonder, then, that these leaders make
mistakes; make grievous errors. The extraordinary thing is
that they have not made more mistakes. It is one of the
most promising symptoms in American democracy that
with all the difficulties attending such positions the labor
leaders on the whole have done so little that is wrong.
UNIONS 21
[420] The employer needs the unions "to stay him from
the fall of vanity"; the employees need them for their own
protection; the community needs them to raise the level of
the citizen.
The [Unions] have been largely instrumental in securing
reasonable hours of labor and proper conditions of work;
in raising materially the scale of wages, and in protect-
ing women and children from industrial oppression.
The trade unions have done this, not for the workingmen
alone, but for all of us; since the conditions under which so
large a part of our fellow citizens work and live will deter-
2T See also Employer and Employee, Employers and Unions, Strikes,
Unrest.
i 74 * tbe words of
mine, in great measure, the future of our country for good
or for evil.
*
One reason why the trades union had to come into exist-
ence was because the law of supply and demand did not
work properly between the opposing forces of the powerful
employer and the individual worker.
*
Strong, responsible unions are essential to industrial fair
play. Without them the labor bargain is wholly one-sided.
The parties to the labor contract must be nearly equal in
strength if justice is to be worked out, and this means that
the workers must be organized and that their organizations
must be recognized by employers as a condition precedent
to industrial peace.
#
Nearly every American who is not himself financially in-
terested in a particular controversy sympathizes thoroughly
with every struggle of the workingmen to better their own
condition. But this sympathy for the workingmen is quickly
forfeited whenever the conduct of the strikers is unreason-
able, arbitrary, lawless or unjust. The American people with
their common sense, their desire for fair play and their re-
spect for law, resent such conduct. The growth and success
of labor unions, therefore, as well as their usefulness to the
community at large, would be much advanced by any meas-
ures which tend to make them more deliberate, less arbi-
trary, and more patient with the trammels of a civilized
community. 28
*
[42 5] A bad act is no worse, as it is no better, because it has
been done by a labor union and not by a partnership or a
28 See also Strikes.
Justice ftrandeis - i 75
business corporation. If unions are lawless, restrain and pun-
ish their lawlessness; if they are arbitrary, repress their arbi-
trariness; if their demands are unreasonable or unjust, resist
them; but do not oppose unions as such.
*
Nearly every large strike is attended by acts of flagrant
lawlessness. The employers, and a large part of the public,
charge these acts to the unions. In very many instances the
unions are entirely innocent. Hoodlums, or habitual crimi-
nals, have merely availed themselves of a convenient oppor-
tunity for breaking the law, in some instances even incited
thereto by employers desiring to turn public opinion against
the strikers. What an immense gain would come to the
unions from a full and fair trial of such charges if the inno-
cence of the unions were established, and perhaps even the
guilt of an employer! And such a trial would almost neces-
sarily be had before a jury, upon oral testimony, with full
opportunity of cross-examination; whereas now, nearly every
important adjudication involving the alleged action of
unions is made upon application to a judge sitting alone,
and upon written affidavits, without the opportunity of
cross-examination. 29
UNITED STATES STEEL CORPORATION
While this corporation is the greatest example of com-
bination, the most conspicuous instance of combination of
capital in the world, it has, as an incident of the power
which it acquires through that combination and through its
associations with railroads and the financial world, under-
taken, and undertaken successfully, to deny the right of
combination to the workingmen, and these horrible condi-
tions of labor, which are a disgrace to America, considering
the wealth which has surrounded and flown out of the in-
29 See also Laws not Men, Strikes.
176- the words of
dustry, are the result of having killed or eliminated from the
steel industry unionism. All the power of capital and all the
ability and intelligence of the men who wield and who serve
the capital have been used to make practically slaves of
these operatives, because it does not mean merely in respect
to the way in which they have lived, but the very worst part
of all this is the repression. It is a condition of repression,
of slavery in the real sense of the word, which is alien to
American conditions. 30
*
It is a life so inhuman as to make our former Negro slav-
ery infinitely preferable, for the master owned the slave, and
tried to keep his property in working order for his own in-
terest. The Steel Trust, on the other hand, looks on its slaves
as something to be worked out and thrown aside. The result
is physical and moral degeneracy work, work, work, with-
out recreation or any possibility of relief save that which
dissipation brings. The men coming out of these steel mills
move on pay day straight to the barroom. Think what such
- men transmit as a physical and moral heritage to their chil-
dren and think of our American citizenship for men who
live under such conditions.
There is only one explanation. This great corporation,
which exemplifies the power of combination, and in connec-
tion with which combination has been justified, has made it
its first business to prevent combination among its em-
ployees when they sought to procure decent working condi-
tions and living conditions. It stamped out, through its im-
mense powers of endurance, one strike after another. It
developed a secret service, a system of espionage among its
workmen, singling out individuals who favor unionism- and
anyone fomenting dissatisfaction with existing conditions,
as it was called, was quietly discharged. The trust is but-
3(> Thanks to the work of Mr. Brandeis, conditions in the steel in-
dustry are considerably different from what they were in 1912.
Tus'tice'Brandeis -477
tressed on one hand by the powers of the railroads and on
the other by great financial interests; against it stands the
poor miserable individual workingman.
UNITED STATES SUPREME COURT
There is no reason why five gentlemen of the Supreme
Court should know better what public policy demands than
five gentlemen of Congress. In the absence of legislation by
Congress the Supreme Court expresses its idea of public
policy, but in the last analysis it is the function of the legisla-
tive branch of the government to declare the public policy
of the United States. There are a great many rules which
the Supreme Court lays down which may afterwards be
changed, and are afterwards changed, by legislation. It is not
disrespect to the Supreme Court to do it. Their interpreta-
tion of the law may be set aside by a new law.
*
[430] If the Court is of opinion that this act of Congress
is in necessary conflict with its recent decisions, those cases
should be frankly overruled. The reasons for doing so are
persuasive. Our experience in attempting to apply the rule,
and helpful discussions by friends of the Court, have made
it clear that the rule declared is legally unsound; that it dis-
turbs legal principles long established; and that if adhered
to, it will make a serious addition to the classes of cases
which this Court is required to review. Experience and dis-
cussion have also made apparent how unfortunate are the
results, economically and socially. It has, in part, frustrated
a promising attempt to alleviate some of the misery, and re-
move some of the injustice, incident to the conduct of in-
dustry and commerce. These far-reaching and unfortunate
results of the rule declared in Southern Pacific Co. v. Jensen
cannot have been foreseen when the decision was rendered.
If it is adhered to, appropriate legislative provision, urgently
needed, cannot be made until another amendment of the
178* the words of
Constitution shall have been adopted. For no federal work-
men's compensation law could satisfy the varying and pe-
culiar economic and social needs incident to the diversity
of conditions in the several States.
*
This Court cannot issue declaratory decrees.
*
It is not our province to weigh evidence. Put at its high-
est, our function is to determine, in the light of all facts
which may enrich our knowledge and enlarge our under-
standing, whether the measure, enacted in the exercise of
an unquestioned police power and of a character inher-
ently unobjectionable, transcends the bounds of reason;
that is, whether the provision as applied is so clearly arbi-
trary or capricious that legislators acting reasonably could
not have believed it to be necessary or appropriate for the
public welfare.
*
It is a peculiar virtue of our system of law that the process
of inclusion and exclusion, so often employed in developing
a rule, is not allowed to end with its enunciation and that an
expression in an opinion yields later to the impact of facts
unforeseen. The attitude of the Court in this respect has
been especially helpful when called upon to adjust the re-
spective powers of the States and the Nation in the field
of taxation. 31
UNITY
Absence of discord does not imply unity. Absence of dis-
cord may be due to indifference. Unity implies interest and
participation. There may be acquiescence in the decision of
a self-constituted body purporting to act on behalf of a free
people. But there cannot be unity of action of a free people
31 See also Experimentation.
Justice "Brandeis l 7 9
unless the decision is the act of that people participating
through its properly constituted representatives.
UNIVERS ITY
[435] Money alone cannot build a worthy University. Too
much money or too quick money may mar one; particu-
larly if it is foreign money. To become great, a University
must express the people whom it serves, and must express
the people and the community at their best. The aim must
be high and the vision broad; the goal seemingly attainable
but beyond the immediate reach.
*
The function of the University in respect to the fine arts
is not limited to promoting understanding and appreciation.
It should strive to awaken the slumbering creative instinct,
to encourage its exercise and development, to stimulate pro-
duction.
UNREST 32
The real cause that is disturbing business today is not the
uncertainty as to the interpretation of "reasonable" or "un-
reasonable" restraint of trade; it is this social unrest of our
people in this struggle with which none in our history save
the Revolution and the Civil War can be compared.
*
The only way to meet the socialistic and restless spirit of
the times is to meet and remove each individual case of in-
justice.
*
My observation leads me to believe that while there are
many contributing causes to unrest, that there is one cause
which is fundamental. That is, necessary conflict the con-
32 See also Industrial Absolutism.
480* the words of
trast between our political liberty and our industrial absolu-
tism. 33
*
[440] Unrest means ordinarily unused faculties, and there
will be labor unrest until the faculties of the laboring man
are fully utilized, and they cannot be without a share in the
responsibility for the results of the business in which they
are engaged. 34
*
Unrest will be to a certain extent mitigated by anything
which improves the condition of the workers, and I cannot
see any real solution, ultimate solution, or an approximation
of a solution of unrest as long as there exists in this country
any juxtaposition of political democracy and industrial abso-
lutism. To my mind, before we can really solve the problem
of industrial unrest, the worker must have a part in the re-
sponsibility and management of the business, and whether
we adopt scientific management, or adopt any other form
of obtaining compensation or of increasing productivity,
unrest will not be removed as long as we have that incon-
sistency, as I view it.
UNRESTRICTED POWER
I should not rely upon the goodness of heart of anybody.
Neither our character nor our intelligence can long bear the
strain of unrestricted power.
*
The sense of unrestricted power is just as demoralizing for
the employer as it is for the employee. 35
33 See Monopoly.
34 See also Unions.
35 See also Employer and Employee.
Justice "Brandeis i 8 i
UNWIELDY COMMITTEES
Unwieldy committees were devised by autocrats whose
advantage it is to pose as being democrats.
VALUE
[445] Value is a word of many meanings.
VITAL AND BEYOND PRICE
But precisely because I believe in this future in which
material comfort is to be comparatively easy of attainment,
I also believe that the race must steadily insist upon pre-
serving its moral vigor unweakened. It is not good for us
that we should ever lose the fighting quality, the stamina,
and the courage to battle for what we want when we are
convinced that we are entitled to it, and other means fail.
There is something better than peace, and that is the peace
that is won by struggle. 36 We shall have lost something vital
and beyond price on the day when the State denies us the
right to resort to force in defense of a just cause.
WAR
The cause of a war as of most human action is not
single. War is ordinarily the result of many cooperating
causes, many different conditions, acts, and motives. His-
torians rarely agree in their judgment as to what was the de-
termining factor in a particular war, even when they write
under circumstances where detachment and the availability
of evidence from all sources minimize both prejudice and
other sources of error; for individuals, and classes of indi-
viduals, attach significance to those things which are sig-
nificant to them. And, as the contributing causes cannot be
subjected, like a chemical combination in a test tube, to
qualitative and quantitative analysis so as to weigh and
value the various elements, the historians differ necessarily
* See Better Than Peace.
1S2* the words of
in their judgments. One finds the determining cause of war
in a great man; another in an idea, a belief, an economic
necessity, a trade advantage, a sinister machination, or an
accident. It is for this reason largely that men seek to inter-
pret anew in each age, and often with each generation, the
important events in the world's history.
WAR AND ITS AFTERMATH
Europe was devastated by war, we by the aftermath.
WHITE PAPER ON PALESTINE
The White Paper does no credit to the moral integ-
rity of British statesmen. Nor even to their diplomatic
skill 37
WIRE TAPPING 38
[450] The progress of science in furnishing the Govern-
ment with means of espionage is not likely to stop with wire
tapping. Ways may some day be developed by which the
Government, without removing papers from secret drawers,
can reproduce them in court, and by which it will be enabled
to expose to a jury the most intimate occurrences of the
home. Advances in the psychic and related sciences may
bring means of exploring unexpressed beliefs, thoughts, and
emotions. "That places the liberty of every man in the hands
of every petty officer" was said by James Otis of much lesser
intrusions than these. To Lord Camden a far slighter in-
trusion seemed "subversive of all the comforts of society."
Can it be that the Constitution affords no protection against
such invasions of individual security?
37 Justice Brandeis was referring to the British White Paper on Pales-
tine of 1939.
58 See also Government Intrusion.
'Justice "Brandeis i 8 3
WOMEN
Women often have greater opportunities than men to
bring about social reform, for which all of us are working.
They have the desire, enthusiasm and understanding.
WOMEN OVERWORK
The experience of manufacturing countries has illustrated
the evil effect of overwork upon the general welfare. Deterio-
ration of any large proportion of the population inevitably
lowers the entire community physically, mentally, and mor-
ally. When the health of women has been injured by long
hours, not only is the working efficiency of the community
impaired, but the deterioration is handed down to succeed-
ing generations. Infant mortality rises, while the children of
married workingwomen who survive are injured by inevita-
ble neglect. The overwork of future mothers thus directly
attacks the welfare of the nation.
ZIONISM 39
It [Zionism] is not a movement to remove all the Jews of
the world compulsorily to Palestine. In the first place there
are 14,000,000 Jews, and Palestine would not accommodate
more than one-third of that number. In the second place, it
is not a movement to compel anyone to go to Palestine.
It is essentially a movement to give to the Jew more, not less
freedom; it aims to enable the Jews to exercise the same
right now exercised by practically every other people in the
world: To live at their option either in the land of their
fathers or in some other country; a right which members of
small nations as well as of large, which Irish, Greek, Bul-
garian, Serbian, or Belgian, may now exercise as fully as
Germans or English.
Zionism seeks to establish in Palestine, for such Jews as
39 See also Noblesse Oblige.
i S 4 * the words of
choose to go and remain there, and for their descendants,
a legally secured home, where they may live together and
lead a Jewish life, where they may expect ultimately to con-
stitute a majority of the population, and may look forward
to what we should call home rule. The Zionists seek to estab-
lish this home in Palestine because they are convinced that
the undying longing of Jews for Palestine is a fact of deepest
significance; that it is a manifestation in the struggle for
existence by an ancient people which has established its
right to live, a people whose three thousand years of civiliza-
tion has produced a faith, culture and individuality which
will enable it to contribute largely in the future, as it has in
the past, to the advance of civilization; and that it is not a
right merely but a duty of the Jewish nationality to survive
and develop. They believe that only in Palestine can Jewish
life be fully protected from the forces of disintegration; that
there alone can the Jewish spirit reach its full and natural
development; and that by securing for those Jews who wish
to settle there the opportunity to do so, not only those Jews,
but all other Jews will be benefited, and that the long per-
plexing Jewish Problem will, at last, find solution.
Zionism suffers from a superfluity of orators and a dearth
of statesmen.
ZIONISM AND PATRIOTISM
[455] Let no American imagine that Zionism is inconsistent
with Patriotism. Multiple loyalties are objectionable only il
they are inconsistent. A man is a better citizen of the Unitec
States for being also a loyal citizen of his state, and of hi?
city; for being loyal to his family, and to his profession 01
trade; for being loyal to his college or his lodge. Every Iris!
American who contributed towards advancing home rule wa:
a better man and a better American for the sacrifice hu
Justice Tirandeis 4 8 5
made. Every American Jew who aids in advancing the Jew-
ish settlement in Palestine, though he feels that neither he
nor his descendants will ever live there, will likewise be a
better man and a better American for doing so.
BIOGRAPHICAL NOTES
The numbers to the left of the notes refer back to the
passages in the text. In the latter, to keep the margin of the
page clear, only each fifth passage is marked. The reader
should not find it difficult to fit together the in-between
passages with their proper numbers. Since this little book
is not intended for the scholar, the references are as a rule
given to the books by and on Justice Brandeis that are con-
veniently available, and not to the Journals, Magazines, Law
Reviews, or Reports in which they first appeared. Those
interested in tracing a quotation to its original source will
be able to do so, generally, by looking up the reference here
given. Thus, for example, the quotations from Ernest Poole
are referred back to Business A Profession. There the reader
will learn that Mr. Pooled essay was first published in the
American Magazine, February, 191 1.
187
188 *
1 Mason, A Free Man's Life,
p. 505.
2 Idem, The Brandeis Way, p,
71.
3 Idem, Brandeis and the Mod-
ern State, pp. 79 f .
4 In a conversation with me.
5 In a conversation with me.
6 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 15.
17 Ernest Poole, Foreword to
Business A Profession, p.
liv.
s In a conversation with me.
9 Brandeis, Business A Pro-
fession, pp. 372 f.
10 Mason, A Free Man's Life,
p. 531.
11 Brandeis, Letter to Frederick
Wehle, October 28, 1924. In
Flexner, Mr, Justice Brandeis
and the University of Louis-
ville, p. 24.
12 Idem, Other People's Money,
p. 50.
is Fraenkel, The Curse of Big-
ness, p. 35.
14 Brandeis, Business A Fro-
fession, p. 58.
is Idem, Ibid., pp. 366 f .
is Fraenkel, The Curse of Big-
ness, p. 81.
^ Idem, Ibid., p. 73.
is Idem, Ibid., p. 51.
tbe words of
19 Brandeis, Business A Pro-
fession, pp. 365 f.
2a In a conversation with rne.
21 Brandeis, Letter to Alfred
Brandeis, January 16, 1927.
In Flexner, Mr. Justice Bran-
deis and the University of
Louisville, p. 53.
22 Idem, Business A Profes-
sion, p. 367.
^ 3 Goldman, Brandeis on Zion-
ism, p. 29.
24 Idem, Ibid.
2 5 In a conversation with me.
2" 6 In a conversation with me,
27 Fraenkel, The Curse of Big-
ness, pp. 44 f.
28 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 261.
29 Mason, A Free Man's Life,
p. 200.
30 Lief, Social and Economic
"Views of Mr. Justice Bran-
deis, p. 141.
31 Brandeis, Letter to Fanny
Brandeis, October 20, 1924.
In Flexner, Mr. Justice Bran-
deis and the University of
Louisville, p. 16.
331 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 153.
33 Fraenkel, The Curse of Big-
ness, p. 40.
^ Idem, Ibid., p. 41.
justice B r a n d e i
35 Brandeis, Other People's
Money, p. 109.
36 Idem, Ibid., pp. 44 f.
w Idem, Ibid., pp. 201 f.
33 Idem, Ibid., pp. 198 ff.
39 Idem, Ibid., pp. 22 f.
40 Fraenkel, The Curse of Big-
ness, p. 263.
41 Idem, Ibid., p. 46.
42 In a conversation with me.
43 Brandeis, Business A Pro-
fession, p. 12.
44 Lief, Brandeis: The Personal
History of an American Ideal,
pp. 220 f.
45 Brandeis, Other People's
Money, p. 163.
46 Idem, Business A Profes-
sion, p. 287.
47 Mason, Brandeis and the
Modern State, p. 58.
48 Frankfurter, Mr. Justice
Brandeis, p. 133.
49 Fraenkel, The Curse of Big-
ness, p. 107.
so Idem, Ibid., p. 292.
62 Idem, Ibid., p. 36.
53 Brandeis, Business A Pro-
fession, pp. 370 f.
55 Idem, Ibid., p. 1.
5 e Fraenkel, The Curse of Big-
ness, pp. 141 f.
5 i 89
57 Brandeis, Business A Pro-
fession, pp. 4f.
58 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 212.
59 Fraenkel, The Curse of Big-
ness, p. 185.
60 Brandeis, Letter to Alfred
Brandeis, February 18, 1925.
In Flexner, Mr. Justice Bran-
deis and the University of
Louisville, p. 8.
61 Idem, Business A Profes-
sion, pp. 346 ff.
62 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 410.
63 Mason, A Free Man's Life,
p. 94.
64 Goldman, Brandeis on Zion-
ism, p. 64.
65 Brandeis, Business A Pro-
fession, p. 370.
66 In a conversation with me.
67 Fraenkel, The Curse of Big-
ness, pp. 270 f.
68 In a conversation with me.
69 Brandeis, Business A Pro-
fession, pp. 348 f.
Fraenkel, The Curse of Big-
ness, pp. 78 f .
71 Mason, Brandeis and the
Modern State, p. 67.
f* Ernest Poole, Foreword to
Business A Profession, pp.
xlvf.
1 90
73 Fraenkel, The Curse of Big-
ness, p. 105.
74 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 80.
75 Idem, Ibid., pp. 398 .
76 Idem, Brandeis: The Personal
History of an American Ideal,
p. 450.
77 Idem, Ibid,, p. 123.
78 Fraenkel, The Curse of Big-
ness, p. 197.
79 Idem, Ibid., pp. 106 f.
so Idem, Ibid., p. 76.
81 Ernest Poole, Foreword to
Business A Profession, p.
xii.
82> Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 390.
83 Mason, The Brandeis Way,
p. 166.
s^ Fraenkel, The Curse of Big-
ness, p. 69.
85 Brandeis, Business A Pro-
fession, pp. 368 f.
86 Idem, Other People's Money,
pp. 222 f.
87 Idem, Business A Profes-
sion, p. 337.
88 Ernest Poole, Foreword to
Business A Profession, p. Iv.
89 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 399.
the words of
90 Mason, Brandeis and the
Modern State, p. 79.
91 Brandeis, Business A Pro-
fession, p. 125-
92 Idem, Other People's Money ;
p. 204.
Fraenkel, The Curse of Big-
ness, p. 88.
94 Brandeis, Letter to Stella and
Emily Dembitz, May 17,
1926. In Flexner, Mr. Justice
Brandeis and the University
of Louisville, pp. 36 f.
95 Goldman, Brandeis on Zion-
ism, p. 91.
96 Mason, Brandeis and the
Modern State, p. 102.
97 Idem, A Free Man's Life, p.
382.
98 Brandeis, Business A Pro-
fession, p. 371.
9<9 Goldman, Brandeis on Zion-
ism, p. 64.
100 Idem, Ibid.
ii Brandeis, Business A Pro-
fession, p. 29.
102 Mason, A Free Man's Life,
p. 520.
103 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 196.
104 Brandeis, Business A Pro-
fession, p. 278.
105 Idem, Other People's Money,
p. 44.
Justice B r a n d e i
106 Idem, Business A Profes-
sion, p. 372.
107 In a conversation with me.
i 8 Lief, Brandeis: The Personal
History of an American Ideal,
p. 277.
109 Goldman, Brandeis on Zion-
ism, p. 64.
110 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 26.
111 Goldman, Brandeis on Zion-
ism, p. 64.
112 Idem, Ibid., p. 67.
113 Brandeis, Business A Pro-
fession, p. 368.
114 Fraenkel, The Curse of Big-
ness, p. 82.
115 Brandeis, Business A Pro-
fession, p. 32.
116 Mason, A Free Man's Life,
p. 602.
117 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 165.
118 Brandeis, Business A Pro-
fession, p. 3.
no Idem, Ibid., pp. 206 f .
120 Idem, Other People's Money,
pp. 204 f.
121 Fraenkel, The Curse of Big-
ness, p. 51.
122 Brandeis, Other People's
Money, p. 202.
123 Fraenkel, The Curse of Big-
ness, pp. 85 f.
126
127
129
184
185
186
i 9 i
Mason, A Free Man's Life,
p. 38.
Idem, Ibid., p. 141.
Fraenkel, The Curse of Big-
ness, pp. 92 f.
Brandeis, Business A Pro-
fession, p. 17.
Idem, Ibid., pp. 21 f.
Fraenkel, The Curse of Big-
ness, pp. 85 f.
Idem, Ibid., pp. 89 f .
Idem, Ibid., p. 95.
Mason, A Free Man's Life,
p. 529.
Fraenkel, The Curse of Big-
ness, p. 87.
Brandeis, Business A Pro-
fession, pp. 364 f.
Mason, Brandeis and the
Modern State, pp. 95 f.
Fraenkel, The Curse of Big-
ness, p. 114.
Lief, Brandeis: The Personal
History of an American Ideal,
p. 78.
Brandeis, Business A Pro-
fession, pp. 338f.
Fraenkel, The Curse of Big-
ness, p. 270.
Idem, Ibid., pp. 156fL
Idem, Ibid., pp. 68 f .
Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 5.
Idem, Ibid., p. 411.
19
144
146
147
14S
* 49
150
152
156
159
160
161
162
163
Ernest Poole, Foreword to
Business A Profession, pp.
livf.
Fraenkel, The Curse of Big-
ness, p. 24.
Brandeis, Business A Pro-
fession, pp. 127 f.
Lief, Social and Economic
Views of Mr. Justice Bran-
dels, p. 261.
Brandeis, Business A Pro-
fession, pp. 58 f.
Ernest Poole, Foreword to
Business A Profession, pp.
liif.
Brandeis, Business A Pro-
fession., p. 369.
Lief, Social and Economic
Views of Mr. Justice Bran-
dels, pp. 260 ff.
idem, Ibid., pp. 212 ff.
Idem, Ibid., p. 236.
Idem, Ibid., pp. 2 35 f.
Idem, Ibid., p. 259.
Idem, Ibid., p. 260.
icfe m> Bf<l, p. 264.
idem, Ibid., p. 231.
Idem, Ibid., p. 261.
In a conversation with me.
In a conversation with me.
Brandeis, Business A Pro-
fession, p. 3.
Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 284.
the words of
i* 4 Idem, Ibid., p. 271.
165 Ernest Poole, Foreword to
Business A Profession, p.
Hi.
166 Mason, A Free Man's Life,
p. 281.
167 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 281.
* Idem, Ibid., pp. 280 t.
"' Idem, Ibid., p. 391.
170 Ernest Poole, Foreword to
Business A Profession, p.
xxvi.
171 Brandeis, Other People's
Money, p. 50.
172 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 261.
173 Mason, Brandeis and the
Modern State, p. 98.
174 Idem, A Free Man's Life, p.
80.
175 Lief, Brandeis: The Personal
History of an American Ideal,
p. 205.
176 Brandeis, Business A Pro-
fession, p. 361.
177 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 236.
178 Goldman, Brandeis on Zion-
ism, pp. 27 f.
Idem, Ibid., p. 52.
<* Idem, Ibid., p. 100.
Justice Brandet
181 In a conversation with me.
182 Lief, Social and Economic
Views of Mr. Justice Bran-
deis^. 345.
183 Mason, Brandeis and the
Modern State, p. 31.
184 Brandeis, Business A Pro-
fession, pp. 37 f.
185 Idem, Other People's Money,
p. 23.
186 Lief, Brandeis: The Personal
History of an American Ideal,
p. 123.
w Fraenkel, The Curse of Big-
ness, p. 292.
188 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 410.
189 In a conversation with me.
190 Brandeis, Letter to Alfred
Brandeis, January 16, 1927.
In Flexner, Mr. Justice Bran-
deis and the University of
Louisville, p. 53.
191 Fraenkel, The Curse of Big-
ness, pp. 267 ff.
192 Goldman, Brandeis on Zion-
ism, p. 98.
193 Brandeis, Business A Pro-
fession, p. 342.
194 Fraenkel, The Curse of Big-
ness, pp. 73 f.
195 Ernest Poole, Foreword to
Business A Profession, pp.
xxxviii f .
5 193
196 Brandeis, Other People's
Money, p. 208.
197 Fraenkel, The Curse of Big-
ness, p. 79.
*Idem, Ibid., pp. 35 f.
199 Mason, A Free Man's Life,
p. 372.
200 Brandeis, Business A Pro-
fession, p. 16.
201 Fraenkel, The Curse of Big-
ness, p. 80.
202 Idem, Ibid., p. 39.
203 Lief, Social and Economic
Views of Mr. Justice Bran-
deis,pp.373L
204 Brandeis, Business A Pro-
fession, p. 27.
2 s Idem, Ibid., p. 26.
206 Mason, Brandeis and the
Modern State, p. 206.
207 Ernest Poole, Foreword to
Business A Profession? p.
XX.
208 Brandeis, Business A Pro-
fession, pp. 324 f .
209 Lief, Brandeis: The Personal
History of an American Ideal,
p. 290.
210 Brandeis, Other People's
Money, p. 51.
sii Idem, Ibid., p. 99.
212 Idem, Business A Profes-
sion, p. 45.
sis Fraenkel, The Curse of Big-
ness, p. 157.
494
214 Goldman, Brandeis on Zion-
ism, pp. 14 f.
215 Idem, Ibid., p. 153.
216 In a conversation with me.
217 Goldman, Brandeis on Zion-
ism, p. 41.
sis Idem, Ibid., pp. 22 f.
219 Idem, Ibid., pp. 61 f.
220 Uem, Ibid., p. 22.
221 Idem, Ibid., p. 44.
^ Idem, Ibid., pp. UL
223 Mason, A Free Man's Life,
p. 486.
224 Goldman, Brandeis on Zion-
ism, pp. 13 f.
225 Uem, Ibid., p. 29.
226 Uem, Ibid., p. 42.
w Idem, Ibid., pp.61 &.
228 idem, Ibid., p. 36.
229 In a conversation with me.
230 Mason, A Free Man's Life,
p. 532.
231 Ernest Poole, Foreword to
Business A Profession, p.
liv.
232 Brandeis, Business A Pro-
fession, pp. 361 f.
233 Ernest Poole, Foreword to
Business A Profession, pp.
livf.
23* Brandeis, Business A Pro-
fession, p. 320.
235 Fraenkel, The Curse of Big-
ness, pp. 86 f .
the words of
236 Brandeis, Business A Pro-
fession, p. 350.
237 Ernest Poole, Foreword to
Business A Profession, p.
liv.
238 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 325.
239 Idem, Ibid., pp. 29 f .
240 Brandeis, Business A Pro-
fession, pp. 362 f .
241 Mason, Brandeis and the
Modern State, pp. 218 f.
242 As phrased by Professor
Mason, Idem, Ibid., p. 221.
243 Brandeis, Business A Pro-
fession, p. 98.
244 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 267.
245 Brandeis, Business A Pro-
fession, pp. 359 ff.
246 Mason, A Free Man's Life,
p. 80.
247 Ernest Poole, Foreword to
Business A Profession, p. x.
248 Idem, Ibid., p. Iv f .
249 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 402.
250 Brandeis, Business A Pro*
fession, pp. 331 f.
251 Ernest Poole, Foreword to
Business A Profession, p.
Ivi.
'Justice B r a n d e i
252 Brandeis, Business A Pro-
fession, pp. 338 f.
253 idem, Ibid., p. 349.
254 idem, Ibid., p. 29.
255 The reference escapes me.
256 Brandeis, Business A Pro-
fession, p. 368.
257 idem, Ibid., p. 34.
258 idem, Ibid., p. 29.
259 Goldman, Brandeis on Zion-
ism, p. 17.
260 Brandeis, Letter to Charles
G. Tachau, April 22, 1926.
In Flexner, Mr. Justice Bran-
deis and the University of
Louisville, p. 32.
261 Idem, Business A Profes-
sion, p. 24.
262 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 377.
263 idem, Ibid., p. 240.
264 Fraenkel, The Curse of Big-
ness, p. 89.
265 idem, Ibid., p. 268.
266 Brandeis, Other People's
Money, p. 208.
267 Idem, Business A Profes-
sion, p. 364.
268 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 281.
269 Brandeis, Business A Pro-
fession, p. 330.
s * 195
270 Idem, Letter to Alfred Bran-
deis, January 16, 1927. In
Flexner, Mr. Justice Brandeis
and the University of Louis-
ville, p. 1 3.
271 Mason, Brandeis and the
Modern State, pp. 218 f.
272 Brandeis, Business A Pro-
fession, p. 355.
273 Mason, Brandeis and the
Modern State, p. 231.
274 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 376.
275 Brandeis, Business A Pro-
fession, p. 367.
276 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 344.
277 idem, Ibid., p. 343.
278 Fraenkel, The Curse of Big-
ness, p. 56.
279 Lief, Brandeis: The Personal
History of an American Ideal,
p. 173.
280 Brandeis, Business A Pro-
fession, p. 6.
281 Goldman, Brandeis on 'Zion-
ism, p. 82.
282 Brandeis, Business A Pro-
fession, p. 49.
283 Fraenkel, The Curse of Big-
ness, p. 270.
2 84 Mason, A Free Man's Life,
p. 91.
196
285 Fraenkel, "The Curse of Big-
ness,]). 159.
286 Brandeis, Business A Pro-
fession, p. 1 54.
287 Mason, A Free Man's Life,
p. 94.
288 Idem, Ibid., p. 506.
289 In a conversation with me.
290 Lief, Social and Economic
Views of Mr. Justice Bran-
dels, p. 378.
291 In a conversation with me.
292 Brandeis, Letter to Alfred
Brandeis, February 18, 1925.
In Flexner, Mr. Justice Bran-
deis and the University of
Louisville, p. 9.
293 Fraenkel, The Curse of Big-
ness, p. 40.
294 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, pp. 314 f.
29 5 Idem, Ibid., p. 228.
296 Fraenkel, The Curse of Big-
ness, pp. 165 f.
297 Idem, Ibid., pp. 169 f.
298 Idem, Ibid., p. 80.
299 Mason, Brandeis and the
Modern State, pp. 88 f.
wo Idem, Ibid., p. 83.
301 Fraenkel, The Curse of Big-
ness, p. 76.
302 Idem, Ibid., pp. 72 f.
303 Mason, Brandeis and the
Modern State, p. 79.
the words of
304 Idem, A Free Man's Life,
p. 359.
305 Brandeis, Other People's
Money, pp. 47 S.
306 Idem, Business A Profes-
sion, pp. 158 f.
SOT idem, Ibid., p. 278.
308 Lief, Social and Economic
Views of Mr. Justice Bran-
efeis,pp.401f.
309 Idem, Brandeis: The Personal
History of an American Ideal,
p. 123.
31 Idem, Ibid., p. 205.
311 Brandeis, Other People's
Money, pp. 207 f.
3 * 2 Idem, Ibid., p. 201.
313 Fraenkel, The Curse of Big-
ness, p. 105.
*w Idem, Ibid.
^ Idem, Ibid., p. 91.
316 Goldman, Brandeis on Zion-
ism, pp. 10 f.
3 " Idem, Ibid., pp. 17 f.
sis Idem, Ibid., pp. 19 f.
319 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 29.
320 j n a conversation with me.
321 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, pp. 68 f .
322 Brandeis, Other People's
Money, p. 51.
Justice B r a n d e i
ass Mason, Brandeis and the
Modern State, pp. 95 f.
324 Goldman, Brandeis on Zion-
ism, p. 30.
325 Ernest Poole, Foreword to
Business A Profession, p. li.
326 Brandeis, Other People's
Money, p. 208.
327 Fiaenkel, The Curse of Big-
ness, p. 110.
328 Brandeis, Business A Pro-
fession, pp. 223 f.
32 Idem, Ibid., p. 276.
Idem, Ibid., p. 71.
331 Goldman, Brandeis on Zion-
ism, p. 127.
332 Mason, A Free Man's Life,
p. 544.
3 33 Idem, Ibid., p. 27.
334 Goldman, Brandeis on Zion-
ism, p. 93.
335 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 128.
336 Brandeis, Business A Pro-
fession, p. 61.
337 Fraenkel, The Curse of Big-
ness, p. 40.
338 Mason, Brandeis and the
Modern State, p. 97.
339 Brandeis, Other People's
Money, pp. 17 ff.
340 Fraenkel, The Curse of Big-
ness, p. 265.
34 * Idem, Ibid., p. 41.
s -197
342 Idem ,Ibid., p. 45,
343 In a conversation with me.
344 Mason, A Free Man's Life,
p. 519.
345 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 399.
346 Idem, Brandeis: The Personal
History of an American Ideal,
p. 72.
347 Fraenkel, The Curse of Big-
ness, p. 86.
348 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, pp. 59 f.
34 Idem, Ibid., pp. 372 f.
330 Brandeis, Business A Pro-
fession, p. 278.
351 Idem, Ibid., pp. 21 f.
352 Ernest Poole, Foreword to
Business A Profession, p.
liii.
853 Idem, Ibid., p. liv.
354 Fraenkel, The Curse of Big-
ness, p. 311.
355 Mason, A Free Man's Life,
p. 125.
356 Brandeis, Other People's
Money, p. 92.
357 Fraenkel, The Curse of Big-
ness, p. 264.
358 Idem, Ibid., p. 266.
35S In a conversation with me.
360 Goldman, Brandeis on Zion-
ism, p. 64.
498
361 Mason, A Free Man's Life,
p. 603.
362 In a conversation with me.
363 Frankfurter, Mr. Justice Bran-
dels, p. 78.
364 Mason, A Free Man's Life,
p. 38.
365 Fraenkel, The Curse of Big-
ness, pp. 104, 113 f.
366 Lief, Social and Economic
Views of Mr, Justice Bran-
deis, p. 388.
367 Fraenkel, The Curse of Big-
ness, p. 270.
368 Brandeis, Letter to Dean
Warwick Anderson, June 4,
1926. In Flexner, Mr. Justice
Brandeis and the University
of Louisville, p. 38.
369 Fraenkel, The Curse of Big-
ness, p. 270.
370 In a conversation with me.
371 In a conversation with me.
372 As phrased by Professor
Mason, Brandeis and the
Modern State, p. 236.
373 Fraenkel, The Curse of Big-
ness, p. 315.
374 Goldman, Brandeis on Zion-
ism, p. 153.
375 In a conversation with me.
376 Frankfurter, Mr. Justice Bran-
deis, p. 105.
377 In a conversation with me.
378 Mason, A Free Man's Life,
p. 164.
the words of
379 Fraenkel, The Curse of Big-
ness, p. 48.
sso Idem, Ibid., p. 49.
381 Ernest Poole, Foreword to
Business A Profession, pp.
xlviii f .
382 In a conversation with me.
383 Brandeis, Other People's
Money, p. 103.
384 Idem, Ibid., p. 6.
385 Idem, Business A Profes-
sion, p. 21.
386 Lief, Brandeis: The Personal
History of an American Ideal,
p. 280.
387 Fraenkel, The Curse of Big-
ness, pp. 126 f.
388 Brandeis, Business A Pro-
fession, p. 23.
389 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 345.
39 Idem, Ibid., p. 346.
391 Brandeis, Business A Pro-
fession, p, 368.
39 * Idem, Ibid., p. 45.
393 Lief, Social and Economic
Views of Mr. Justice 'Bran-
deis, p. 379.
394 Mason, A Free Man's Life,
p. 603.
395 Lief, Social and Economic
Views of Mr. Justice Bran
deis, p. 375.
396 Ernest Poole, Foreword tc
Business A Profession,^, lii
justice B r a n A e i
397 Brandeis, Business A Pro-
fession, pp. 158 f.
398 Fraenkel, The Curse of Big-
ness 7 p. 270.
399 Idem, Ibid., p. 40.
400 Goldman, Erandeis on 'Zion-
ism, p. 103.
401 Brandeis, Other People's
Money, p. 198.
402 In a conversation with me.
4 3 Fraenkel, The Curse of Big-
ness, pp. 43 f.
4 4 Idem, Ibid., p. 45.
405 Goldman, Brandeis on Zion-
ism, -pp. 130 f.
406 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 378.
407 Brandeis, Letter to Frederick
Wehle, November 19, 1924.
In Flexner, Mr. Justice Bran-
deis and the University of
Louisville, p. 5.
408 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 411.
409 Fraenkel, The Curse of Big-
ness, p. 36.
410 Brandeis, Business A Pro-
fession, p. 38.
411 Fraenkel, The Curse of Big-
ness, p. 138.
4 * 2 Idem, Ibid., p. 159.
4 * 3 Idem, Ibid., p. 292.
414 Goldman, Brandeis on Zion-
ism, p. 41.
S i99
415 Fraenkel, The Curse of Big-
ness, p. 158.
416 Lief, Social and Economic
Views of Mr, Justice Bran-
deis,p. 10.
417 Fraenkel, The Curse of Big-
ness, p. 41.
418 Brandeis, Business A Pro-
fession, p. 46.
419 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 374.
420 Brandeis, Business A Pro-
fession, p. 19.
42 * Idem, Ibid., p. 88.
422 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 378.
423 Fraenkel, The Curse of Big-
ness, p. 43.
424 Brandeis, Business A Pro-
fession, pp. 91 f.
425 Mason, A Free Man's Life,
p. 142.
426 Brandeis, Business A Pro-
fession, pp. 96 f .
427 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, pp. 376 f.
428 Fraenkel, The Curse of Big-
ness, pp. 38 f.
429 Lief, Brandeis: The Personal
History of an American Ideal,
p. 319.
430 Frankfurter, Mr. Justice Bran-
deis, p. 104.
200 3
43 * Idem, Ibid., p. 97.
432 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 103.
433 Frankfurter, Mr. Justice Bran-
deis, p. 103.
434 Goldman, Brandeis on Zion-
ism, p. 102.
435 Brandeis, Letter to Alfred
Brandeis, February 18, 1925.
In Flexner, Mr. Justice Bran-
deis and the University of
Louisville, p. 7.
436 Idem, Letter to Fanny Bran-
deis, October 20, 1924. In
Flexner, Mr. Justice Brandeis
and the University of Louis-
ville, pp. 16 f.
437 Fraenkel, The Curse of Big-
ness, p. 39.
438 Mason, The Brandeis Way,
p. 174.
439 Fraenkel, The Curse of Big-
ness, p. 72.
440 Mason, A Free Man's Life,
p. 432.
441 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, pp. 381 f.
442 Mason, The Brandeis Way,
p. 71-
u s t i c e 'Brandeis
443 Brandeis, Business A Pro-
fession, -p. 17.
444 In a conversation with me.
445 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 147.
446 Fraenkel, The Curse of Big-
ness, p. 46.
447 Lief, Social and Economic
Views of Mr. Justice Bran*
deis, p. 226.
448 Mason, A Free Man's Life,
p. 530.
449 In a conversation with me.
450 Lief, Social and Economic
Views of Mr. Justice Bran-
deis, p. 277.
451 Idem, Brandeis: The Personal
History of an American Ideal,
p. 256.
452 Idem, Social and Economic
Views of Mr. Justice Bran-
deis, p. 344.
453 Goldman, Brandeis on Zion-
ism, pp. 24 f.
454 In a conversation with me.
455 Goldman, Brandeis on Zion-
ism, p. 28.
Z
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